APPEALS – SCOPE OF REVIEW. Where the parties raised only a June 21, 2022, date of injury, this court affirms the compensation judge’s findings which are limited to that date of injury.
Compensation Judge: Nicole B. Surges
Attorneys: C. Jeremy Lagasse, Aaron Ferguson Law, Arden Hills, Minnesota, for the Appellant. Brent C. Kleffman, Peterson, Logren & Kilbury, P.A., Roseville, Minnesota, for the Respondent.
Affirmed.
THOMAS J. CHRISTENSON, Judge
The employee appeals from the compensation judge’s denial of her claim for benefits, alleging that the compensation judge committed reversible error in failing to address an additional date of injury and that the findings and order is clearly erroneous and not supported by substantial evidence. We affirm.
The employee, Adelfa Almeida-Prado, began working for the employer, Atlas Staffing, on March 15, 2022. (Ex. N.) The employee was assigned to work at Sportech, assembling doors and windows on all-terrain vehicles. This physical work required the employee to use various drills to place screws during the assembly process. The employee assembled between 40-50 doors in an eight-hour shift.
On June 13, 2022, a drill snapped back and hit the employee’s right wrist at work. (Id.) No rotation or torquing of the right shoulder was recounted by the employee during this incident. (T. 87.) This injury was reported to Sportech on June 13, 2022, and to the employer on June 14, 2022. (T. 86-87, Ex. 17.) After this incident, the employee continued her work duties at Sportech using a brace on her right hand. (T. 46.) The employee did not immediately seek medical treatment. (T. 87.)
The employee made no claim for entitlement to benefits for a June 13, 2022, date of injury in this proceeding. Thus, there was no controversy for the judge to resolve relating to a June 13, 2022, date of injury. “The existence of a justiciable controversy is a prerequisite to adjudication. The judicial function does not comprehend the giving of advisory opinions.” Izaak Walton League of Am. Endowment, Inc. v. State, Dep’t of Nat. Res., 312 Minn. 587, 589, 252 N.W.2d 852, 854 (1977). No benefits were at stake and the claim was not ripe for decision. Cf. Katzenmeyer v. M.T.S. Sys., Inc., slip op. (W.C.C.A. Apr. 4, 1995). We limit our review of the evidentiary record and decline to make any determinations or to issue an advisory opinion on any potential claim that the employee may assert with regard to a June 13, 2022, date of injury.
The employee testified that on June 21, 2022, she was using a drill which caused her right arm to jerk up or twist and the drill to drop. (T. 47-48.) It is unclear whether the employee struck her right hand during this incident. (T. 48, 69.) If she had, it would have struck metal equipment. (T. 48.) The employee’s right hand became swollen and painful.
On June 22, 2022, the employee sought treatment at North Memorial Urgent Care – Elk River. (Ex. D.) The employee reported that the day before, she was using a drill at work which caused her hand to swing up and strike equipment. She complained of pain over her second and third metacarpophalangeal joints (MCPs) and medial aspect of her right wrist. Ice and a brace were used by the employee for pain and swelling in her hand and wrist.
A report of workability provided to the employer reflected an injury to the right wrist on June 20, 2022, not June 13 or 21. (Ex. 2.) The employee, when questioned by the employer, did not mention a new injury on June 20, 2022. Instead, the employee stated the injury of June 13, 2022, continued to be painful causing the employee to seek medical care.[1]
Upon receipt of the report of workability, the employer provided light-duty work to the employee until July 15, 2022. The light-duty work included general cleaning, assembly using small parts, and office work. The employee’s right wrist pain increased from sweeping and using a vacuum when assigned to office cleaning.
On June 28, 2022, the employee was re-evaluated by Nancy A. Hassan, PA-C. The employee reported that her pain had significantly improved and that she no longer had any swelling. If the pain persisted, the employee was advised to follow up with her primary care physician.
The employee was seen in follow-up by Katheryn M. Gestach, PA-C, at North Memorial Urgent Care – Elk River on August 1, 2022. PA-C Gestach noted that the employee had gone back to work with no restrictions in early July. The return to work aggravated her symptoms and the employee stopped working due to pain. The employee was referred to Twin Cities Orthopedics to assess her right hand and wrist pain.
On August 10, 2022, the employee was seen at Twin Cities Orthopedics for evaluation of her right hand by Mitchell Macbeth, P.A. The employee’s primary complaint was ulnar-sided wrist pain on the right. An MRI scan was ordered.
Larissa Carlson Viana of the Minnesota Department of Labor and Industry – Vocational Rehabilitation Unit conducted a rehabilitation consultation with the employee on August 12, 2022. The employee reported having sustained a right wrist injury while performing work at Sportech on June 13, 2022. (DLI/VRU Ex. C.)
On October 3, 2022, the employee saw Verrill J. Schwantes, D.C., at Brooklyn Health & Injury Specialists (Brooklyn Health) for a work injury to her right arm. (Ex. 4.) The employee complained of right-sided neck pain, right-sided upper back pain, right arm pain, right triceps pain, and medial-sided right wrist pain. Dr. Schwantes diagnosed the employee with cervicalgia, thoracic spine pain, right elbow pain, and right wrist pain.
An x-ray of the employee’s right elbow was performed at iCare Diagnostic Imagining on October 31, 2022. No bone or joint abnormality was found. The soft tissues were unremarkable, and the right elbow x-ray was read as normal. (Ex. F.)
The employee reported that the pain in her right wrist was better when seen at Brooklyn Health on November 18, 2022. Examination of the employee’s right wrist showed normal active and passive range of motion with no pain in all planes. Mild local pain was recorded over the medial wrist. The employee reported she was no longer experiencing right wrist or elbow pain when seen at Brooklyn Health a month later.[2]
On December 14, 2022, Dr. Paul A. Cederberg performed an independent medical examination of the employee. The employee by history sustained injuries to her right wrist, right hand, right shoulder, and neck on June 21, 2022. The injuries occurred when the employee was using a drill which snapped back, causing her right hand and wrist to swing up and strike equipment. On examination, the employee’s neck and upper back range of motion were normal with no focal tenderness of the ligaments. Grip strength of the employee’s hands were 5 pounds on the right and 45 pounds on the left. Dr. Cederberg reported the diminished grip strength was a subjective finding due to lack of forceful manipulation by the employee. There was a 10-degree loss of internal and external rotation of the right shoulder. Glenohumeral abduction of the right shoulder also showed a loss of 10 degrees. Normal muscle strength in the right upper extremity was found.
It was Dr. Cederberg’s opinion that on June 21, 2022, the employee sustained temporary contusions on her right wrist and on the dorsum of her right hand to the MSP joints. Further, Dr. Cederberg opined that the employee had not sustained any permanent partial disability and could work without restrictions. Dr. Cederberg opined that the employee had reached maximum medical improvement of her right hand and wrist condition on August 10, 2022.
The employee underwent an MRI scan of her right shoulder on January 3, 2023. Based upon the MRI scan findings, Dr. Schwantes referred the employee to Dr. Allen Hunt of Twin Cities Orthopedics.
On March 30, 2023, the employee saw Dr. Robert Wengler for an independent medical examination. (Ex. H.) The employee reported that her entire right arm was wrenched in a work incident at Sportech on June 21, 2022, when a drill she was using caught and caused her right wrist to twist and to strike a piece of equipment. The acute symptoms were to the employee’s right hand and wrist. The employee reported the incident to her employer and was sent home because of increasing pain. After medical care the employee was released to return to work.
Dr. Wengler described the employee’s condition as right-hand grip weakness. The employee was further diagnosed as having a chronic sprain of the right wrist, as well as partial thickness tears and inflammatory changes of the rotator cuff. He opined that these findings were causally related to the employee’s work incident on June 21, 2022. Various permanent partial disability ratings for the employee’s diagnosed conditions were given by Dr. Wengler and he provided the employee with work restrictions.
On May 4, 2023, the employee’s right shoulder was evaluated by Dr. Allen Hunt at Twin Cities Orthopedics. (Ex. E.) The record notes that the employee’s right shoulder condition was due to an incident at work when her shoulder was pulled and rotated. The arm and wrist pain was subsiding but the pain in her posterior shoulder was lingering. Dr. Hunt recommended that the employee undergo right shoulder rotator cuff repair, subacromial decompression, and distal clavicle excision.
The employee filed a claim petition claiming an injury occurring only on June 21, 2022. (Claim Petition; Amended Claim Petition; T. 11-13.) A hearing was held on October 6, 2023, at which the compensation judge heard testimony from the employee and a representative of the employer. Exhibits, including the reports of Dr. Cederberg and Dr. Wengler, were offered and received into evidence. In her December 7, 2023, Findings and Order, the compensation judge denied the employee’s claims, finding that the employee did not sustain an injury arising out of and in the course of employment on June 21, 2022. The employee appeals the compensation judge’s decision.
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).
On appeal, the employee asserts that the compensation judge committed errors of law requiring reversal in not expanding the hearing to include a claim of an acute injury on June 13, 2022, or a consequential or Gillette[3] injury. She requests that this court remand the case to allow a hearing on claims of injury on June 13 and June 21, 2022.
The only issue raised by the employee at hearing was primary liability for an injury on June 21, 2022. The employer disputed the date of injury, and the nature and extent of the employee’s alleged injuries. The employee argues that substantial evidence does not support the judge’s finding that the employee failed to meet her burden of proof that her asserted work injury on June 21, 2022, was a substantial contributing cause of her right-hand condition.
Under the Minnesota Workers’ Compensation Act, it is the obligation of the employee to prove entitlement to benefits by a preponderance of the evidence. Minn. Stat. § 176.021, subds. 1 and 1a. At hearing, the employee bore the burden to prove by a preponderance of the evidence that she sustained a work injury on June 21, 2022, and that she was entitled to workers’ compensation benefits. See, e.g., Fischer v. Saga Corp., 463 N.W.2d 501, 501, 43 W.C.D. 559, 560 (Minn. 1990).
A judge may base her conclusions on all reliable evidence in the record. Reimer v. Minnit Tool/M.I.T. Tool Corp., 520 N.W.2d 397, 51 W.C.D. 153 (Minn. 1994). It is the responsibility of a judge to carefully consider all of the evidence presented at the hearing and to weigh the conflicting evidence. The employee argues that the judge’s findings were not based upon a thorough review of the evidence submitted by the parties, or upon substantial evidence including the hearing testimony. We are not persuaded.
In this case, the judge identified the evidence she considered, including the testimony of the witnesses, and explained the reasoning for her decision. The judge recited excerpts from the reports of Dr. Cederberg and Dr. Wengler but did not explicitly adopt the opinion of either physician. [4] It is entirely appropriate for a judge to recite the factual content set out in the independent medical reports submitted into evidence by the parties as findings. Peterson v. NSP/Xcel Energy, No. WC23-6520 (W.C.C.A. Mar. 27, 2024). Based upon the evidentiary record, the judge concluded that the employee failed to prove she was injured on June 21, 2022.
The judge determined that the employee’s right-hand injury occurred on June 13, 2022. (Finding 8.) The judge further found that the June 13, 2022, incident was reported to the employer on June 14, 2022. (Finding 7.) Based upon the witness testimony, the judge also concluded that the description of the June 13, 2022, incident in which the employee injured her right hand was identical to the description provided by the employee to her medical providers as having occurred on June 21, 2022. (Id.) These findings were based upon the judge’s determination that the testimony of the employer’s witness was credible. (Findings 7 and 10, Memo. at 11.)
The employee contends that the judge’s determination that the employer’s witness’s testimony was credible was clearly erroneous. The employee attempted to establish that she was injured on June 21, 2022, based upon her own testimony, and submitted medical records. The compensation judge considered and weighed the evidentiary record and chose to rely on the testimony of the employer’s witness that the employee was not injured on June 21, 2022. It is the responsibility of the compensation judge to weigh the evidence and to assess the probative value of witness testimony. Assessment of a witness’s credibility is a unique function of the trier of fact and this court must give due weight to the compensation judge’s opportunity to assess the credibility of witnesses. See Even v. Kraft, Inc., 445 N.W.2d 831, 834-35, 42 W.C.D. 220, 225 (Minn. 1989). Where the evidence reasonably allows different inferences, the inference drawn by compensation judge is generally upheld. Dille v. Knox Lumber Co., 452 N.W.2d 679, 681, 42 W.C.D. 819, 823 (Minn. 1990).
A judge is limited to resolution of issues raised at trial. Kulenkamp v. Timesavers, Inc., 420 N.W.2d 891, 40 W.C.D. 869 (Minn. 1988). As the Minnesota Supreme Court stated, “[b]asic fairness requires that the parties in a workers’ compensation proceeding be afforded reasonable notice and an opportunity to be heard before decisions concerning entitlement to benefits can be made.” Id., at 894, 40 W.C.D. at 872. Our review of the record reveals that the employee was not claiming an injury on June 13, 2022, nor did she bring claims for a consequential or Gillette injury culminating on June 21, 2022. The only injury claimed and addressed at hearing was a specific injury on June 21, 2022. (T. 11.) It is also undisputed that the compensation judge asked the parties at the hearing whether the June 13, 2022, incident was at issue for determination. No reply was made by the employee’s counsel and the employer’s counsel stated that it was not.[5] (T. 90.) The failure of the parties to raise the issues of whether the employee sustained an injury on June 13, 2022, a consequential injury, or a Gillette injury on June 21, 2022, as distinct issues at hearing to be decided by the compensation judge precludes this court from addressing the issues on appeal. See Kulenkamp, 420 N.W.2d at 894, 40 W.C.D. at 872 (basic fairness requires notice and reasonable opportunity to be heard); Koll v. Indep. Sch. Dist. 345, 77 W.C.D. 187 (W.C.C.A. 2017); Lowe v. Alexandria-Peterson d/b/a Pete’s Cnty. Mkt., 75 W.C.D. 151 (W.C.C.A. 2015); Anwiler v. Luoma Egg Ranch, Inc., 74 W.C.D. 541 (W.C.C.A. 2014); Ounasser v. Golden Living Ctr. Rochester W., 73 W.C.D. 619 (W.C.C.A. 2013); Wise-Thackery v. Universal Colour Lab, Inc., slip op. (W.C.C.A. Dec. 31, 1998).[6]
The employee further claims that the compensation judge erred by failing to sufficiently explain her findings. A compensation judge should “state with clarity and completeness the facts essential to the ultimate decision so that a reviewing court can determine from the record whether these facts support the judge’s decision” and “should not leave to the reviewing court the obligation to seek or spell out the facts supporting the judge’s decision or to choose between conflicting testimony and inferences.” Barbknecht v. Americ Disc, Inc., of Minn., slip op. (W.C.C.A. Mar. 3, 2005) (quoting Mendez-Merino v. Farmstead Foods, slip op. (W.C.C.A. Aug. 7, 2001)). This court has remanded decisions where we have been unable to discern the basis or the underlying facts upon which the compensation judge’s decision was based. This is not such a case. The question on appeal is not whether there was evidence by which the judge might have reached a different conclusion, but whether there is sufficient evidence in the record to support the decision. The judge is not required to discuss all evidence in her decision. See Regan v. VOA Nat’l Housing, 61 W.C.D. 142 (W.C.C.A. 2000) (a compensation judge is not required to refer to or discuss every piece of evidence introduced at the hearing). The judge made sufficient findings on the claimed date of injury for this court to review her decision, and the basis for her decision was clearly articulated.
A judge’s 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). Because the compensation judge’s finding that the employee did not sustain a work injury occurring on June 21, 2022, is not manifestly contrary to the weight of the evidence, we will not disturb the compensation judge’s decision and, accordingly, affirm.
[2] The records of Brooklyn Health show the employee was taken off work through May 4, 2023. (Ex. F.)
[3] Gillette v. Harold, Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960) (where a pre-existing infirmity is aggravated by repetitive minute trauma because of the ordinary and necessary duties of employment, the disability resulting from such aggravation is compensable as a personal injury under the Workers’ Compensation Act).
[4] Both parties objected to the respective opposing medical expert reports based upon foundation. The question of foundation goes to an expert’s qualification to render an opinion. “The qualifications of an expert do not usually go to the admissibility of the expert’s opinion but merely to its weight.” Reuther v. State, Mankato State Univ., 455 N.W. 2d 475, 477 (Minn. 1990). The competency of a witness to provide expert medical testimony depends upon both the degree of the witness’s scientific knowledge and the extent of the witness’s practical experience with the matter which is the subject of the offered testimony. Drews v. Kohl’s, 55 W.C.D. 33, 37 (W.C.C.A. 1996) (citing Reinhardt v. Colton, 337 N.W.2d 88, 93 (Minn. 1983)). In this case, both Dr. Cederberg and Dr. Wengler took a history from the employee, examined the employee, and reviewed relevant medical records and scans. This level of knowledge affords adequate foundation for a doctor to render an expert medical opinion. Id. at 38-39; see Grunst v. Immanuel-St. Joseph Hosp., 424 N.W.2d 66, 68, 40 W.C.D. 1130, 1132-33 (Minn. 1988).
[5] The employee is represented by different counsel on appeal than at the hearing below.
[6] The employee asserts it was error for the compensation judge to fail to order production of an incident report related to the June 13, 2022, event which was not produced in discovery. She argues on appeal that the incident report is the “best evidence” describing the employee’s injury on June 13, 2022. Again, the June 13, 2022, incident was not at issue for determination by the compensation judge at hearing. No motion to compel was filed nor was a request for continuance made at hearing for production of the incident report document. See Kornell v. Hennepin Cnty., 47 W.C.D. 229 (W.C.C.A. 1992) (proper remedy for failure to respond to discovery is to bring a motion to compel), summarily aff’d (Minn. Sept. 2, 1992). Further, the employer’s witness was cross-examined on the employee’s reporting of the event. Since the issue of the June 13, 2022, incident report was not presented to the compensation judge at hearing, it may not be raised on appeal. See Moreno v. Advertising Unlimited, slip op., (W.C.C.A. Jan. 3, 2001).