CAUSATION – SUBSTANTIAL EVIDENCE. Substantial evidence, including adequately founded expert medical opinion, supports the compensation judge’s finding that the employee’s work injury caused or substantially contributed to the rotator cuff tears in his right shoulder.
Compensation Judge: Sandra J. Grove
Attorneys: Jennifer M. Fitzgerald, Baehman Law Firm, Woodbury, Minnesota, for the Respondent. David O. Nirenstein and Kelly B. Nyquist, Fitch, Johnson, Larson, P.A., Roseville, Minnesota, for the Appellant.
Affirmed.
SEAN M. QUINN, Judge
The self-insured employer (hereinafter employer) appeals from the compensation judge’s finding that the employee’s work injury caused or substantially contributed to the rotator cuff tears in his right shoulder. We affirm.
On January 13, 2021, the employee, Christopher Gurrola, was injured while working as a boiler operator for the employer, Metropolitan Council. He was working on a boiler when he stepped off the last rung of a ladder and his right leg fell into a hole in the grated floor. As he fell, he reached with his right arm to grab a railing, hitting his right shoulder against the wall and his head on the boiler door. He reported having pain in his head, low back, and along the right side of his body, including his right shoulder, hip, and knee.
On January 18, 2021, the employee was examined at Minnesota Occupational Health (MOH) by Dr. Vijay Eyunni and reported symptoms affecting his head, right shoulder, lower back, right hip, and right leg. His right shoulder showed normal range of motion with minimal discomfort, his strength and grip testing was normal, and x-rays revealed no fractures. He was diagnosed with a mild right shoulder sprain and multiple contusions and was released to return to work with restrictions.
The employee returned to MOH on January 20, 2021, with complaints of mild pain in his right shoulder. He was examined by Dr. Michael Lockheart, who noted similar findings of full range of motion and no signs of a full thickness rotator cuff tear. Dr. Lockheart diagnosed the employee with a right shoulder contusion. On February 4, 2021, the employee returned to Dr. Lockheart, who recorded that the employee had indicated that his symptoms were “50% resolved” and that his right shoulder was “doing better.” (Ex. E.) Full range of motion was seen on examination and Dr. Lockheart continued to diagnose the employee with a right shoulder contusion. At the employee’s request, Dr. Lockheart released the employee to work without restrictions. The employee later testified that the only limitation he had was that he needed a ride from the employer’s parking lot to the work area because his back and knee hurt too much to make the 10-minute walk. He also testified that his co-workers did the heavier work involving stairs, reaching, and heavy lifting. A month later, on March 4, 2021, the employee told Dr. Lockheart that he still had pain in his right shoulder at times. On examination, he still had full range of motion.
The employee again returned to Dr. Lockheart on May 24, 2021, stating that his right shoulder was still painful intermittently, but not constantly, and hurt when he slept on his right side. His right shoulder range of motion remained full. Because the employee continued to have ongoing symptoms, Dr. Lockheart ordered an MRI scan of the right shoulder, which the employee underwent on July 6, 2021. The MRI scan revealed tears in the rotator cuff, including a complete tear of the proximal long head of the bicep tendon, near full-thickness tear of the subscapularis tendon, and a partial-thickness tear of the supraspinatus tendon. There was also indication of a labral tear, glenohumeral joint effusion, and marked synovitis. The employee next saw Dr. Lockheart on July 12, 2021. On examination, the employee still had full range of motion and no tenderness. Based on the employee’s ongoing symptoms and the MRI results, Dr. Lockheart referred the employee to physical therapy with the option to see an orthopedic surgeon.
The employee attended physical therapy at Summit Orthopedics between July 20 and September 1, 2021. On July 27, 2021, the employee was seen by Dr. Jack Skendzel of Summit Orthopedics. Dr. Skendzel noted the employee’s complaints of pain, weakness, and difficulty reaching away from his body with his right arm. On examination, he continued to show full range of motion and essentially normal strength. Due to the employee’s symptoms, MRI findings, and the “traumatic nature of the injury,” Dr. Skendzel recommended surgery. (Ex. D.)
On September 3, 2021, the employee underwent right shoulder surgery, including an arthroscopic repair of the rotator cuff, subacromial bursectomy, acromioplasty, and an open biceps tenodesis, performed by Dr. Skendzel. Following post-operative physical therapy, the employee made an excellent recovery and on January 10, 2022, he returned to work with restrictions, including being limited to eight hours per shift.
On July 8, 2022, the employee was examined by Dr. Julie Happe at the request of the employer. Dr. Happe reviewed the employee’s medical records, including those from MOH, examined the employee, and wrote a report dated September 3, 2022. As to the right shoulder, Dr. Happe diagnosed a temporary right shoulder contusion caused by the work injury that had resolved by March 4, 2021. She opined that the employee’s rotator cuff tears were due to a degenerative process and that the type of tears the employee suffered are inconsistent with the “normal” shoulder examinations contained in the MOH records, including the findings of full range of motion, normal strength, and the absence of acute pain complaints.
At the employee’s last visit with Dr. Skendzel in September 2022, a functional capacity evaluation (FCE) was recommended to define permanent restrictions regarding the right shoulder. On October 3, 2022, the employee was terminated from employment, but found work with a different employer at a wage loss. The employee had been working at a wage loss for the employer due to a reduction in hours per Dr. Skendzel and was receiving temporary partial disability (TPD) benefits before he started the new job. Based on the report of Dr. Happe, the employer discontinued wage loss benefits. The employee filed a claim petition and an objection to discontinuance, which were later consolidated.
At the request of the employee’s attorney, Dr. Skendzel wrote a narrative report dated March 14, 2023, opining that the work injury directly caused traumatic rotator cuff tears in the employee’s right shoulder. He further stated that he did not agree with the causation opinions of Dr. Happe.
A hearing was held before a compensation judge on May 25, 2023. The issues at the hearing included the nature and extent of the employee’s right knee and right shoulder injuries, whether he needed work restrictions after October 2022 when TPD benefits were discontinued, whether the medical care for the employee’s right knee and right shoulder was reasonable and necessary to treat his work injuries, and whether he was entitled to an FCE to determine the extent of his work restrictions related to the work injury. The employee relied on the opinion of Dr. Skendzel to support his claim before the compensation judge. The employer objected to the foundation of Dr. Skendzel’s opinion, asserting that he had not reviewed the employee’s medical records from MOH.
In a June 12, 2023, findings and order, the compensation judge determined that the opinion of Dr. Skendzel regarding the employee’s right shoulder was well-founded and more persuasive than that of Dr. Happe. Relying on Dr. Skendzel’s opinion, the compensation judge found that the employee’s work injury caused or substantially contributed to the rotator cuff tears in his right shoulder and awarded the employee ongoing TPD benefits, medical benefits for the right shoulder, and an FCE. With regard to the right knee, the compensation judge adopted the opinion of the employee’s treating knee doctor, Dr. Eric Stroemer, and found that the work injury was a temporary aggravation of a pre-existing condition that resolved as of May 1, 2023, and awarded medical benefits for the knee through that date. The employer appeals the findings regarding the employee’s right shoulder condition.[1]
On appeal, the Workers’ Compensation Court of Appeals must determine whether “the findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.” Minn. Stat. § 176.421, subd. 1(3). Substantial evidence supports the findings if, in the context of the entire record, “they are supported by evidence that a reasonable mind might accept as adequate.” Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984). Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed. Id. at 60, 37 W.C.D. at 240. Similarly, findings of fact should not be disturbed, even though the reviewing court might disagree with them, “unless they are clearly erroneous in the sense that they are manifestly contrary to the weight of evidence or not reasonably supported by the evidence as a whole.” Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).
A decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which the Workers’ Compensation Court of Appeals may consider de novo. Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993), summarily aff’d (Minn. June 3, 1993).
The employee argues on appeal that the compensation judge erred in relying on the opinion of Dr. Skendzel, alleging his opinion lacked foundation because he was not provided an accurate history of the employee’s medical symptoms and objective findings at MOH from January 2021 through July 2021. The employer states that Dr. Happe thoroughly reviewed the employee’s medical records from that time and noted the employee had normal right shoulder range of motion, normal strength, and did not express significant right shoulder pain, which led her to opine that the employee’s right shoulder condition was due to chronic impingement, not the work injury. The employer asserts that Dr. Skendzel did not review those MOH medical records and the history the employee provided to him was inaccurate, and therefore, he was unaware of the employee’s lack of symptomatology or objective findings in those months following the work injury and his opinion that the employee’s work injury caused his right shoulder traumatic rotator cuff tears lacked foundation. We are not convinced by the employer’s argument.
A compensation judge’s choice between two conflicting medical experts is generally upheld unless the facts assumed by an expert in rendering the opinion are not supported by the evidence, resulting in that opinion lacking foundation. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985); see also Mattick v. Hy-Vee Foods Stores, 898 N.W.2d 616, 621, 77 W.C.D. 617, 624 (Minn. 2017).
Dr. Skendzel took a thorough history of the employee, conducted an examination, and performed the surgery to repair his torn rotator cuff. He also reviewed Dr. Happe’s report which discussed the relevant portions of the MOH records as they related to the employee’s right shoulder complaints and objective findings on examination, as well as Dr. Happe’s opinion regarding the relevance of those MOH records. In addition, the employee testified that he had shoulder pain during the months following the work injury and that the MOH records, which reflected that he was “doing better” and that his symptoms were “50% resolved,” were not accurate. The compensation judge found the employee’s testimony to be “highly credible.” (Finding 1.) The trier of fact has the unique function of assessing a witness’s credibility. Even v. Kraft, Inc., 445 N.W.2d 831, 835, 42 W.C.D. 220, 225 (Minn. 1989). It is not the role of this court to reevaluate the credibility and probative value of a witness’s testimony or choose different inferences than those of the compensation judge. Krotzer v. Browning-Ferris/Woodlake Sanitation Serv., 459 N.W.2d 509, 513, 43 W.C.D. 254, 261 (Minn. 1990). Further, the MOH records described normal range of motion and “some” pain throughout. The employee’s reports of pain to the MOH doctors are consistent with the later records. While he testified at the hearing that the pain was “significant,” none of the doctors recorded significant pain complaints from the employee. In short, the employee seemingly minimized his pain to all of his doctors. Even after the MRI scan revealed the rotator cuff tears, he still had only modest pain complaints and full range of motion and strength, not only at MOH but also on examination with Dr. Skendzel.
The record below shows that the employee never reported significant pain complaints or demonstrated any loss of range of motion but still had a serious rotator cuff condition, including a complete tear of the bicep tendon, a near full-thickness tear of the subscapularis tendon, and a partial-thickness tear of the supraspinatus tendon, as well as other shoulder pathology such as a labral tear, glenohumeral joint effusion, and marked synovitis. He did not miss work, even after the discovery of the torn rotator cuff, until after the surgery. We note that Dr. Lockheart ordered the MRI scan despite the seemingly minimal objective findings and subjective symptoms, which suggests that he suspected possible issues. Even after receiving the MRI findings, Dr. Lockheart initially ordered physical therapy, not a surgical referral, because the employee’s other objective findings and his subjective complaints were not particularly significant.
The compensation judge did not err in rejecting the employer’s foundation objection and determining Dr. Skendzel’s opinion had sufficient foundation. Substantial evidence, including Dr. Skendzel’s opinion, supports the compensation judge’s finding that the employee’s work injury caused or substantially contributed to the rotator cuff tears in his right shoulder. Accordingly, we affirm.
[1] During the time the employee was treating for his right shoulder, he also had ongoing care for his right knee. Dr. Happe opined the work injury was not the cause of the need for medical care for the employee’s right knee except for six to eight weeks to treat a contusion. Dr. Stroemer agreed that the work injury to the knee was temporary, but opined the temporary injury was more than a contusion and did not resolve until May 1, 2023. The employer appealed Finding 56 and Order 3, which reference the right knee and shoulder injuries, but only addressed issues regarding the employee’s right shoulder in the brief on appeal. An issue raised in the notice of appeal but not addressed in the appellant’s brief is deemed waived and will not be addressed by the court. Minn. R. 9800.0900, subp. 1. We therefore do not address the knee findings.