CAUSATION – SUBSTANTIAL EVIDENCE. Substantial evidence, including expert medical opinion, supports the compensation judge’s finding that the employee’s low back injury was temporary and had resolved.
EVIDENCE – EXPERT MEDICAL OPINION. Where the medical opinion regarding the employee’s left ankle adopted by the compensation judge lacked foundation, and no other evidence supported the finding that the employee sustained a temporary left ankle contusion injury on the date of injury or the finding that the employee did not aggravate her pre-existing left ankle condition, substantial evidence does not support the judge’s denial of the employee’s claim for medical expenses related to the consequential aggravation of her left ankle condition.
PRACTICE & PROCEDURE – APPEALS. The employee disputed the employer and insurer’s denial of TTD benefits for lack of job search at the hearing, but did not argue that she was an active employee who expected to return to work for the employer. A legal theory of compensability of claims cannot be raised for the first time on appeal and is forfeited.
Compensation Judge: Veronica Walther
Attorneys: Michael Kemmitt, Kemmitt, Sanford & Kramer Law, P.L.L.C., Minneapolis, Minnesota, for the Appellant. Michael R. Johnson and Mitchell Larson, Erstad & Riemer, P.A., Minneapolis, Minnesota, for the Respondents.
Affirmed in part and reversed in part.
SEAN M. QUINN, Judge
The employee appeals from the compensation judge’s determination that her low back injury was temporary and had resolved, that her left ankle injury was temporary and had resolved, that her pre-existing left ankle condition was not aggravated by the work injury, and that she is not entitled to temporary total disability (TTD) benefits. We affirm in part and reverse in part.
The employee, Kathleen Chmiel, worked as a personal care attendant for the employer, Cassia. On September 13, 2023, at age 62 and while working for the employer, the employee was injured while mopping the floor. As she was wringing out a mop, she twisted her right arm and fell. She had complaints of pain in her right shoulder, right knee, and low back. She was examined by Dr. Andrew Ames, a general practitioner, the same day for right shoulder and low back pain. At a follow-up visit with Dr. Ames on September 29, 2023, the employee described severe low back pain and limping due to knee pain, which caused ankle pain, but he did not specify which knee or ankle. Dr. Ames assigned restrictions of lifting no more than ten pounds and no standing for longer than one hour without a ten-minute break. He also referred the employee to Dr. Stefan Kaiser, an occupational medicine specialist.
The employee was first examined by Dr. Kaiser on October 6, 2023. He noted that the employee had a history of chronic low back pain[1] and that the employee reported her low back pain was worse since the work injury. X-rays showed osteopenia and mild arthrosis of the right shoulder, mild osteoarthritis and possible trace joint effusion of the right knee, and chronic grade 2 spondylolisthesis and severe disc loss height at L5-S1. A right shoulder MRI scan showed a small but complete thickness tear of the supraspinatus tendon, multiple partial-thickness tears in other parts of the rotator cuff, trace joint effusion, and mild osteoarthritis. A right knee MRI scan showed complex tearing of nearly the entire posterior horn of the medial meniscus, multifocal chondromalacia, trace joint effusion, and a small Baker’s cyst. Finally, a lumbar MRI scan showed moderate to severe bilateral foraminal stenosis at L5-S1 secondary to anterolisthesis and facet hypertrophy similar to that seen on a 2020 MRI scan,[2] and moderate bilateral foraminal stenosis at L4-5 secondary to a broad-based disc bulge at that level. Dr. Kaiser placed restrictions, including no lifting, carrying, pushing, or pulling over ten pounds, no bending, kneeling, or squatting, no resident transfers, and no sweeping or mopping.
On November 15, 2023, after a second examination of the employee and having reviewed the x-rays and MRI scans, Dr. Kaiser diagnosed an acute medial meniscus tear of the right knee, traumatic complete tearing of the right rotator cuff, and acute low back pain with right-sided sciatica, spondylolisthesis, and neural foraminal stenosis. He referred the employee for physical therapy for all three conditions and for an orthopedic consultation for her right shoulder and right knee. He continued the employee’s light-duty work restrictions.
On December 7, 2023, the employee was seen by Dr. Daniel Mark, an orthopedist, for her right shoulder and right knee. Dr. Mark recommended knee injections and a knee brace. For her right shoulder, he referred her to a surgeon, noting that the employee had developed frozen shoulder which likely needed to improve before any shoulder surgery could take place. He also continued the employee’s work restrictions as outlined by Dr. Kaiser.
The employee returned to Dr. Kaiser on December 13, 2023, and reported that she was going to start physical therapy for the frozen right shoulder condition, in addition to treating her right knee and low back pain. Because the employee had sensitivities to anti-inflammatory medications, Dr. Kaiser suggested injections to alleviate her low back pain and maintained the same work restrictions. In January 2024, the employee began physical therapy for her right shoulder, right knee, and low back pain. There is nothing in the record to show whether the low back injections recommended by Dr. Kaiser occurred.
On January 24, 2024, the employee was again examined by Dr. Kaiser. He noted the employee had an altered gait due to her right knee condition and symptoms, despite wearing a knee brace, and recommended referral to a knee surgeon. He also noted the employee’s right shoulder range of motion was still limited. Dr. Kaiser continued the employee’s work restrictions.
On February 6, 2024, the employee was examined by Dr. Michael Torchia, an orthopedic surgeon, regarding her right shoulder. Based on his examination of the employee, his review of her x-rays and MRI scan, and her lack of improvement with conservative care, Dr. Torchia recommended surgical repair of the rotator cuff.
Dr. Paul Cederberg examined the employee on March 5, 2024, at the request of the employer and insurer, and issued a report dated March 13, 2024. Dr. Cederberg indicated that he reviewed medical records from seven medical providers, but did not specify date ranges of treatment, nor did he discuss each date of service. Further, any correspondence listing the medical records sent to Dr. Cederberg was not in the record. Dr. Cederberg took a history from the employee indicating that she was injured when she was wringing out a mop, slipped and started to fall, twisting her right shoulder and resulting in right knee and low back pain. Dr. Cederberg examined the employee’s right shoulder, noting loss of range of motion and loss of right (dominant) grip strength. He also examined the employee’s right knee, noting tenderness, crepitus, reduced range of motion, and pseudolaxity. Finally, he examined the employee’s low back, noting tenderness and reduced range of motion. In his review of the medical records, he did not mention the complaints of ankle pain made on September 29, 2023, or the altered gait noted on January 24, 2024. Dr. Cederberg made note of the lumbar x-ray and MRI findings in 2023. He also noted that Dr. Kaiser had referred the employee for physical therapy for her low back pain in November 2023 and that she had reported to Dr. Kaiser on December 13, 2023, that she was exhausted from her pain, including her low back pain. Dr. Cederberg opined that the employee suffered a right shoulder rotator cuff strain and a right knee strain and meniscal tear. For both the shoulder and knee, Dr. Cederberg opined that the injuries had not resolved, that both conditions needed arthroscopic surgery, and that the treatment to-date had been reasonable, necessary, and causally related to her work injury. He placed various work restrictions on the employee’s activities relative to the shoulder and knee conditions. Finally, as to the low back, Dr. Cederberg opined the employee suffered a strain superimposed on degenerative spondylolisthesis of L5 on S1. He opined that the treatment for the low back was reasonable, necessary, and causally related to the work injury, but that the low back strain had resolved and that the employee needed no further care or work restrictions relative to the low back. He placed the employee at maximum medical improvement (MMI) relative to the low back as of December 13, 2023.
On March 8, 2024, Dr. Kaiser examined the employee, noting that the employee’s care had been delayed while the insurer determined whether to approve various recommended treatments. He continued the same light-duty work restrictions for the employee.
On April 9, 2024, the employee suffered another injury to her right shoulder when she reached out to catch a patient’s call light as it was falling. She felt increased pain and a popping sensation in her right shoulder. The employee returned to Dr. Mark on May 2, 2024, with complaints of increased pain in her right shoulder following the incident. He diagnosed an acute re-injury of underlying rotator cuff tears. He advised the employee to follow up with Dr. Torchia for right shoulder surgery. At the same visit with Dr. Mark, the employee also complained of left ankle pain. X-rays revealed moderate to severe degenerative changes in the left ankle, mild anterior subluxation of the tibia relative to the talar dome, and a mild chronic deformity of the medial malleolus possibly related to prior trauma.
On May 8, 2024, Dr. Kaiser again examined the employee, noting worsened right shoulder symptoms following the re-injury. He modified the employee’s work restrictions to further limit lifting, carrying, pushing, and pulling with the right arm up to two pounds, and up to ten pounds using both arms.
When seen by Dr. Mark on May 15, 2024, regarding her left ankle pain and x-ray results, the employee reported left ankle pain worsening over the previous five to ten years, but that the current symptoms might be related to overcompensating for her right knee. Dr. Mark diagnosed advanced tibiotalar joint osteoarthritis, provided an ankle brace, and referred her for surgery.
On June 10, 2024, the employee followed up with Dr. Ames for chronic low back pain and bilateral sciatica. He suggested a steroid injection. There is no indication in the record whether this injection was administered.
On June 18, 2024, the employee had a consultation with Dr. Jefferson Davis, an orthopedic surgeon, regarding her left ankle. The employee reported a longstanding history of ankle instability and pain dating to her youth, but that it had “significantly worsened” since the work injury and that she had been “ok in regard to the left ankle prior to this [work] injury.” (Ex. 2.) She also reported a history of two severe ankle twists and a cortisone injection in 2014,[3] but that her ankle “didn’t bother her a lot after that until she started walking different after the injury.” (Id.) Dr. Davis diagnosed bone-on-bone degenerative arthrosis due to longstanding instability. He also stated:
I do think that this degenerative arthrosis [has] been longstanding although [it] did not bother her until she had to start switching her gait due to her right-sided injuries and this is evidenced by the fact that she had not sought care for this since 2014 when she had an injection . . . [and has] done well since then. I think that walking on this leg due to her other injuries [has] exacerbated [the] arthrosis.
(Id.) Dr. Davis offered an injection and opined that she needed an ankle fusion or ankle replacement surgery. Dr. Davis completed a report of workability limiting the employee to sedentary activities and standing only as tolerated.[4]
On June 21, 2024, the employer notified the employee by letter that while she was still considered an active employee, they could not accommodate Dr. Davis’s restrictions. The employee and the employer continued to correspond by email from September 2024 through March 2025.
The employee’s physical therapy continued through July 2024. Upon discharge, the employee had ongoing pain and limitations related to her right shoulder and difficulty weight-bearing on her right knee.
On August 13, 2024, the employee was examined by Dr. Leroy McCarty for a second surgical opinion for her right shoulder. The employee had right shoulder pain radiating into her thumb and index finger and left shoulder pain. Bilateral shoulder MRI scans were ordered. Dr. McCarty suspected the right rotator cuff tear, first seen on the November 2023 MRI, had worsened and that the left shoulder pain was a result of the employee compensating for her right shoulder difficulties. He provided work restrictions on the employee’s use of her upper extremities.
The next day, the employee followed up with Dr. Kaiser and reported that Dr. McCarty also recommended bilateral shoulder surgery. The employee underwent repeat MRI scans for both shoulders on November 3, 2024, which showed right shoulder rotator cuff tendinopathy with fraying or tearing on the bursal surface and undersurface, a likely full-thickness tear involving the anterior supraspinatus tendon near its lateral insertion, and left shoulder tendinopathy with fraying or tearing, as well as labral degeneration and tearing.
The employee returned to Dr. McCarty on November 12, 2024, reporting her need for left ankle surgery. Dr. McCarty recommended that she undergo surgeries for her bilateral shoulder conditions before any ankle surgery due to the likely need for crutches after an ankle surgery. He recommended right shoulder surgery first, followed by conservative care for the left shoulder such as an injection or physical therapy, with additional surgical intervention if that care proved unsuccessful. The employee agreed to undergo the right shoulder surgery.
The employee returned to Dr. Torchia on January 15, 2025, to discuss right shoulder surgery. He agreed that this was appropriate care, but that the employee needed to care for another unrelated medical condition before scheduling shoulder surgery.
On February 19, 2025, after re-examining the employee at the employer and insurer’s request, Dr. Cederberg issued a second report. Dr. Cederberg detailed the history of the events surrounding the employee’s re-injury of her right shoulder but did not repeat any history regarding the original injury nor take a history regarding the employee’s prior low back or left ankle conditions. Dr. Cederberg did not identify any medical records reviewed for this report, but he did discuss the records of the employee’s first visit with Dr. McCarty and the MRI scan on August 13, 2024. Again, any correspondence listing the medical records sent to Dr. Cederberg before this examination was not made part of the record. As to the right knee, Dr. Cederberg wrote, “it was recommended she have Synvisc injections, but these have been denied as well, along with surgery for the right knee.” (Ex. A.) Similarly, as to the left ankle, Dr. Cederberg wrote, “She has seen providers for the left ankle, which has been a problem dating back to childhood with multiple sprains. Diagnosis for the left ankle is degenerative arthritis.” (Id.) Dr. Cederberg examined the employee’s shoulders, her right knee, and her left ankle. He noted reduction of right hand grip strength and right shoulder weakness, reduced right knee range of motion with tenderness and varus alignment, and reduced range of motion and weakness of the left ankle. Dr. Cederberg stated that the injuries suffered by the employee on September 13, 2023, included “contusion” strains of the right shoulder, right knee, and left ankle, with the last being a temporary injury. (Id.) He agreed the April 9, 2024, injury aggravated the previously injured right shoulder condition. Addressing whether the employee had any consequential injury or aggravation of her left ankle, Dr. Cederberg stated, “I do not believe so. She has a chronic history of chronic left ankle pain dating back to childhood.”[5] (Id.) He agreed that treatment to the right shoulder, right knee, and left ankle had been reasonable and necessary to-date, with the shoulder and knee treatment causally related to the 2023 work injury.
The employee was examined by Dr. Jack Bert at her attorney’s request, and he issued a report dated April 28, 2025. Dr. Bert examined the employee and reviewed medical records from seven providers. While he did not specify the date range of the records he reviewed, Dr. Bert provided discussion of medical history for some of the specific dates of service.[6] Dr. Bert noted that the employee walked with a limp, had reduced range of motion in her shoulders, right knee, and left ankle, and had tenderness at the joints. He diagnosed the employee with a right rotator cuff tear, torn medial meniscus of the right knee, and chronic spondylolisthesis at L5-S1. He opined the right shoulder, right knee, and low back conditions were caused by the September 2023 work injury and the employee’s pre-existing low back condition was permanently aggravated by the same injury. He further opined that the left shoulder condition was aggravated by the work injury, that the left ankle condition was caused by the work injury, and that her pre-existing left ankle condition was also aggravated as a direct and natural consequence of the work injury.[7] He recommended work restrictions and further care, including bilateral shoulder surgery, right knee surgery, a more aggressive approach to caring for the left ankle, and ongoing care for the low back.
The employee returned to see Dr. Torchia on July 15, 2025. He recommended right shoulder rotator cuff repair surgery and injections for the left shoulder. The employee agreed to proceed with the right shoulder surgery. The same work restrictions remained in place.
The employee filed a claim petition, and the matter came on for hearing before a compensation judge on July 23, 2025.[8] The employee testified that her left ankle was not problematic for many years before she began walking with a limp following the September 2023 work injury. She listed the various activities she was able to do without problems prior to the injury, including various exercises. She also testified regarding her work search, stating that after the employer told her in June 2024 that they could no longer accommodate her work restrictions, she initially expected she would return to work for the employer in a short time. By July 2024, she began looking for work and by August 2024, she began keeping a job search log. Most of her work search was done through job search and job recruiting websites, which was how she had originally found her job with the employer.
At the hearing, the parties stipulated that the employee suffered compensable right shoulder, right knee, and left ankle injuries on September 13, 2023, that the employee needed further medical care for the shoulder and knee injuries, that she was not at MMI for the shoulder and knee injuries, and that the employee aggravated the right shoulder injury on April 9, 2024. The issues before the compensation judge included the nature and extent of the employee’s low back and left ankle injuries, including whether a pre-existing left ankle condition was aggravated by the September 2023 work injury, and whether the employee was entitled to TTD benefits from June 8, 2024, through the date of the hearing.[9]
The compensation judge found that the employee suffered a temporary low back injury on September 13, 2023, which resolved as of December 13, 2023. She also found that the employee suffered a temporary left ankle contusion which had resolved by the time of Dr. Cederberg’s second examination on January 7, 2025, and that the pre-existing left ankle condition was not aggravated by the September 13, 2023, work injury. Finally, the compensation judge found that the employee did not conduct a diligent job search and thus was not eligible for TTD benefits from and after June 2024.
The employee appeals the findings that her low back and left ankle injuries were temporary and that her pre-existing left ankle condition was not aggravated by the work injury. She also appeals the denial of TTD benefits.
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.” N. 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 appeals the compensation judge’s findings that she suffered only a temporary left ankle contusion and a temporary low back strain, that she did not suffer an aggravation of her pre-existing left ankle condition, and that she is not entitled to TTD benefits.
The compensation judge, relying upon the opinion of Dr. Cederberg, found the employee’s low back strain was temporary and had resolved on December 13, 2023. The employee argues on appeal that Dr. Cederberg’s opinion lacked foundation and that the compensation judge erred in adopting that opinion over that of Dr. Bert. We disagree.
The compensation judge, as trier of fact, has discretion to choose between competing and conflicting medical experts’ reports and opinions. Gianotti v. Indep. Sch. Dist. 152, 889 N.W.2d 796, 803, 77 W.C.D. 117, 126 (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)). A compensation judge’s adoption of an expert opinion 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).
In forming his opinion regarding the employee’s low back condition, Dr. Cederberg reviewed relevant, albeit limited, lumbar spine medical records, took a history from the employee regarding how she hurt her low back, and conducted an examination of her low back. As a result, he had sufficient foundation to render an opinion regarding her low back condition and causation. Under these facts, his review of limited medical records goes to the weight the compensation judge could give to Dr. Cederberg’s opinion, not to its foundation. See Ruether v. State, 455 N.W.2d 475, 477, 42 W.C.D. 1118, 1121 (Minn. 1990). We also note that while the employee reported severe low back pain to Dr. Kaiser on the same date Dr. Cederberg found the temporary low back injury had resolved, Dr. Kaiser offered minimal treatment options to the employee. There is no record those treatments occurred. Although Dr. Cederberg did not explain his reasoning for opining the employee’s low back condition had resolved as of December 13, 2023, the apparent lack of treatment after December 2023 supports Dr. Cederberg’s opinion. We defer to the compensation judge’s opportunity to review the medical evidence, including expert medical opinions, as well as her opportunity to observe the employee’s testimony, and cannot conclude that she abused her discretion in finding Dr. Cederberg’s opinion regarding the employee’s low back condition more persuasive than that of Dr. Bert.[10] We affirm the compensation judge’s finding that the employee’s low back strain was temporary and had resolved by December 13, 2023.
The compensation judge, relying upon the opinion of Dr. Cederberg, found the employee suffered a temporary left ankle contusion that had resolved. The employee argues that Dr. Cederberg’s opinion regarding the left ankle injury lacked foundation and that the compensation judge erred in relying upon that opinion. We agree.
The employee did not have any left ankle complaints during her first examination with Dr. Cederberg in March 2024 and he did not examine or otherwise comment on the employee’s left ankle at that time. In addition, there was no mention of any ankle injury in the history Dr. Cederberg took from the employee. In his second report, Dr. Cederberg mentioned no history taken from the employee regarding the left ankle, yet opined the employee suffered a contusion of her left ankle during the September 2023 work injury, which he had not diagnosed in his initial report.
There is no evidence to support such a contusion diagnosis at the time of the injury and no indication of direct, contusion-causing trauma to the employee’s left ankle during the work injury.[11] No evidence in the record shows a contusion injury as observed, reported, or claimed at the time of the injury. No contusion injury was mentioned by the employee to any doctor, including Dr. Cederberg. Dr. Cederberg’s opinion that the employee sustained a left ankle contusion on the date of injury lacks foundation and there is no other evidence in the record to support the compensation judge’s finding of a left ankle contusion injury. Accordingly, we reverse the portion of Finding 36 which finds Dr. Cederberg’s opinion regarding the employee’s left ankle persuasive, the portion of Finding 41 which finds the employee sustained a temporary and resolved left ankle contusion injury on September 13, 2023, and the compensation judge’s adoption of Dr. Cederberg’s opinion on that issue.
The compensation judge also found that the employee’s pre-existing left ankle condition was not aggravated by the work injury, based on Dr. Cederberg’s opinion. There is a limited history of the employee’s pre-existing left ankle condition in the record. As noted, the employee’s pre-injury medical records, regarding her left ankle or otherwise, are not in evidence. The only evidence of any prior left ankle treatment and care came from the employee’s history as outlined in Dr. Davis’s treatment note and as stated by the employee in her hearing testimony. This evidence indicated that she had two severe left ankle twists, occurring at unspecified dates, and underwent a cortisone injection about ten years prior to the work injury. Shortly after the September 2023 work injury, the employee reported she had been limping because of her right knee injury. By May 2024, she reported left ankle pain to Dr. Mark. X-rays showed severe bone-on-bone arthritis. Dr. Mark referred the employee to Dr. Davis, who noted the employee’s altered gait and opined that the ankle arthritis was of a longstanding nature, but was asymptomatic until the employee began limping following the right knee injury. He further opined the limping had aggravated the underlying ankle condition, worsening the condition, which is consistent with the employee’s testimony that her left ankle did not cause her symptoms or limitations until she began limping.
Neither Dr. Cederberg nor Dr. Bert took any past medical history from the employee regarding her left ankle, reviewed any previous medical records, or reviewed the records of Dr. Mark or Dr. Davis. Dr. Cederberg opined the employee had no consequential injury to the left ankle because she had difficulties with her ankle since childhood, a history that was not explained in his report or contained in any of the medical records he reviewed. Dr. Cederberg did not review or mention any records discussing the employee’s altered gait due to her admitted right knee injury, the very basis for her claim of a consequential left ankle injury. We conclude that Dr. Cederberg’s opinion that the employee did not have a left ankle consequential aggravation lacks foundation and that it was error for the compensation judge to adopt that opinion. We therefore reverse the remaining portion of Finding 41, stating that the employee’s pre-existing left ankle condition was not aggravated by the work injury, as not supported by substantial evidence. We also reverse the portions of Orders 2 and 3 that limit treatment of the employee’s left ankle through January 7, 2025.
Medical evidence in the record supports the employee’s claim that she sustained a consequential aggravation of her left ankle condition. Dr. Mark noted moderate to severe degenerative changes in the employee’s left ankle, and Dr. Davis diagnosed the employee with bone-on-bone degenerative arthrosis due to longstanding instability, which was asymptomatic until the employee began limping as a result of the September 13, 2023, work injury. The opinions of Dr. Mark and Dr. Davis establish causation for an aggravation of the employee’s pre-existing left ankle condition, the nature of the aggravation, and the need for additional care. This evidence was not rebutted by any competent evidence and satisfies the employee’s burden to show that she suffered a consequential injury to her left ankle as a result of the September 13, 2023, work injury. As such, we find that the employee has proven a consequential aggravation of her pre-existing left ankle condition, and the employer and insurer are therefore liable to pay for the medical care in dispute regarding the employee’s left ankle. See Minn. Stat. § 176.421, subd. 6 (the powers of the Workers’ Compensation Court of Appeals includes the power to substitute findings based on the total evidence); Lagasse, 982 N.W.2d at 202 (this court may substitute findings which are not in conflict with other findings of the compensation judge that are supported by substantial evidence).
When an employee with medical restrictions is able to work but cannot secure employment, TTD benefits may be payable considering factors such as age, education, training, skills, work experience, and the labor market available in the employee’s community. Redgate v. Sroga’s Standard Serv., 421 N.W.2d 729, 40 W.C.D. 948 (Minn. 1988); Schulte v. C.H. Peterson Constr. Co., 278 Minn. 79, 83, 153 N.W.2d 130, 133, 24 W.C.D. 290, 295 (1967) (the concept of TTD is primarily dependent upon the employee’s ability to find and hold a job). An employee under restrictions due to a work injury must conduct a job search within those medical restrictions to be entitled to TTD benefits. Redgate, 421 N.W.2d at 733, 40 W.C.D. at 954.
At hearing, the employee argued she was entitled to TTD benefits under the Redgate/Schulte standard, and presented evidence of her job search. The employer and insurer argued at the hearing that the evidence showed the job search was not diligent and therefore that the employee was not entitled to TTD benefits, and the compensation judge agreed. While the employee challenged this finding in her notice of appeal to this court, she did not brief the issue of whether she conducted a diligent job search.[12] Instead, she argued that she was not required to conduct a job search because she maintained an active employee status with the employer. See Kleszyk v. Minneapolis Star & Tribune, 45 W.C.D. 198 (W.C.C.A. 1991) (while employees are generally required to search for work to receive TTD benefits, there is an exception when the employee has a reasonable expectation of returning to work with the date-of-injury employer), summarily aff’d (Minn. Aug. 29, 1991)). However, this argument was not raised in the hearing below.
A legal theory regarding compensability of claims that was not raised at the hearing before the compensation judge cannot be raised for the first time on appeal and is forfeited. Leuthard v. Indep. Sch. Dist. 912, 958 N.W.2d 640, 650 (Minn. 2021); see also Ewing v. Print Craft, Inc., 936 N.W.2d 886, 890 n.4 (Minn. 2020); Gianotti, 889 N.W.2d at 800-01, 77 W.C.D. at 122-23; Ruether, 455 N.W.2d at 479, 42 W.C.D. at 1124. To allow the employee to make this argument for the first time on appeal would unfairly deprive the employer and insurer the opportunity to defend that specific theory of compensability. Consequently, we affirm the compensation judge’s denial of TTD benefits.
In summary, we affirm the compensation judge’s findings on issues relating to the employee’s TTD benefits and low back claims. We reverse the findings and orders regarding the employee’s left ankle claims as stated above.
[2] No medical records related to the 2020 MRI scan or the employee’s symptoms leading up to that scan were offered into evidence.
[3] None of the employee’s medical records regarding prior care and treatment for her left ankle condition, including any treatment related to the cortisone injection or the dates of the two prior ankle twists, were offered into evidence. The only evidence in the record regarding any prior left ankle injury or care is contained in this treatment note.
[4] The standing restriction from Dr. Davis, along with the other restrictions imposed by Dr. Kaiser, remained in place through the date of the hearing.
[5] Dr. Cederberg did not mention the employee’s altered gait in his report. He also did not mention the treatment notes from Dr. Mark or Dr. Davis regarding the employee’s left ankle.
[6] Dr. Bert also did not mention the treatment notes from Dr. Mark or Dr. Davis regarding the employee’s left ankle.
[7] In correspondence provided to Dr. Bert by the employee’s attorney, he was asked to address whether the employee’s left ankle condition was a direct and natural consequence of her right knee injury and whether any pre-existing left ankle condition was substantially aggravated by the work injury. (Ex. 14.) Dr. Bert mentioned the employee’s altered gait upon examination but did not mention her altered gait as a cause of the consequential injury he diagnosed.
[8] As of the date of the hearing, the employee had not undergone any of the recommended surgical treatments for her shoulders, right knee, or left ankle. She testified at the hearing that right shoulder surgery was scheduled for August 21, 2025. (T. 44.)
[9] Other issues decided by the compensation judge included the employee’s average weekly wage, a claimed migraine headache condition, a claimed consequential left shoulder injury, and reimbursement for medical milage and intervention claims. The findings on these issues were not appealed.
[10] We note that while the employee argues that Dr. Bert’s opinion is more compelling than that of Dr. Cederberg, Dr. Bert’s review of the employee’s medical record was also limited and his opinion regarding the employee’s lumbar spine condition was similarly unexplained.
[11] While he mentioned no contusions in his first report, Dr. Cederberg referred to the employee’s injuries to her right shoulder, right knee, and low back as “contusion” strains in his second report. There is no evidentiary support for any contusion injuries at the time of the work injury.
[12] During oral arguments before this court, the employee’s counsel confirmed that there was no dispute regarding the finding that she had not conducted a diligent job search.