CAUSATION – SUBSTANTIAL EVIDENCE. Substantial evidence supports the compensation judge’s finding that the employee did not sustain a work-related low back injury on March 1, 2021.
TEMPORARY TOTAL DISABILITY – SUBSTANTIAL EVIDENCE; TEMPORARY PARTIAL DISABILITY – SUBSTANTIAL EVIDENCE. Substantial evidence supports the compensation judge’s findings that the employee’s work injury was not a substantial contributing factor to the employee’s claims for wage loss benefits.
Compensation Judge: Nicole B. Surges
Attorneys: Samuel H. Dilley, Robichaud, Schroepfer & Correia, P.A., Minneapolis, Minnesota, for the Appellant. Susan E. Larson, Arthur, Chapman, Kettering, Smetak and Pikala, P.A., Minneapolis, Minnesota, for the Respondents.
Affirmed.
DEBORAH K. SUNDQUIST, Judge
The employee appeals the compensation judge’s finding that he did not sustain a work-related back injury and the judge’s denial of his claims for wage loss benefits. We affirm.
Gerardo Ortega, the employee, was hired as a home insulation installer for the employer, Installed Building Solutions. He began working for the employer on February 25, 2021, and for the first three days completed trainings and filled out paperwork. On the employee’s fourth day of work, March 1, 2021, as he was entering the building to start the workday, he slipped and fell on a cement walkway. He landed on his back, buttocks, and right arm.
The employee reported the fall but continued working his regular hours lifting 60-70 pounds of insulation. (Findings 1 and 29; T. at 47.) He eventually sought medical care at an Allina clinic urgent care approximately two weeks later on March 12, 2021. He complained of ongoing right arm pain primarily from the right shoulder to his elbow. X-rays taken of the employee’s right upper extremity were normal with no fractures. He was diagnosed with right arm strain and was taken off work for four days, followed by a return to work with lifting and carrying restrictions assigned by the treating physician, Lina Daugela, M.D., through March 27, 2021. (Ex. 5.) The initial medical notes did not mention an injury or complaints to the low back, tailbone, or buttocks, but only an injury to the right upper extremity. Approximately six weeks later, on April 26, 2021, the employee returned to Allina complaining of tailbone pain. (Id.) He reported improvement of his right arm pain and reported that he had experienced similar low back pain in the past.
The employee has a significant history of low back injuries and medical treatment prior to his employment with the employer. In August 2014, he suffered a work-related low back injury while working for another employer and had sustained a herniated L5-S1 disc and chronic degenerative disc disease at the L3-4, L4-5, and L5-S1 levels. A few months later, in December 2014, the employee was involved in a motor vehicle accident injuring his mid-back. Dr. Mark Engasser was retained as an independent medical examiner to evaluate the employee during litigation of the prior work injury. He diagnosed low back pain, lumbar disc degeneration from L3 to S1, with a shallow right foraminal and lateral disc protrusion at L5-S1, and non-organic pain elements. Dr. Engasser opined that the employee had developed low back pain due to the August 2014 work injury and December 2014 motor vehicle accident. Four years later, in April 2018, the employee sought medical treatment for low back pain radiating to the left foot. An MRI scan showed a significant progression of the prior herniated disc. The employee underwent a left L4-5 discectomy on February 11, 2019. The surgery was successful and the employee did not seek medical treatment for low back pain for almost two years.
Following the April 26, 2021, Allina visit, the employee began seeing multiple medical providers for the care and treatment of his low back and left leg pain. The pain was centered in the sacrococcygeal area and radiated into the left buttock and leg. In August 2021, he underwent an x-ray which showed no coccyx or sacrum abnormality. An MRI scan revealed a recurrent herniated disc with L5 nerve root impingement. In September 2021, the employee saw Dr. Manuel Pinto who recommended a left L4-5 laminotomy and discectomy due to multilevel disc degeneration involving L3-4 and L5-S1. Within a few weeks, on October 1, 2021, the employee’s pain became so severe that he sought admittance to the emergency department at Regions Hospital. The next day, he underwent revision surgery of the left L4-5 hemilaminotomy, proximal foraminotomy, and discectomy for treatment of his recurrent left L4-5 disc herniation.
At the employer and insurer’s request, the employee was evaluated by John Sherman, M.D. Dr. Sherman reviewed multiple medical records, took a medical history, and examined the employee. He opined that the employee did not suffer an injury to the back due to the March 1, 2021, fall at work. Instead, Dr. Sherman reasoned that the employee developed a spontaneous recurrent disc herniation consistent with the natural history of disc herniation which typically occur spontaneously without a specific injury or event. He noted that the initial medical record included only complaints of right arm pain and that no back pain was reported until April 26, 2021. Dr. Sherman also opined that the employee’s right arm injury had resolved within a month after the injury, the employee required no restrictions, had returned to work without restrictions, and had reached maximum medica improvement for all conditions.
Jack Bert, M.D., performed an evaluation on behalf of the employee. He stated that the employee had immediate back pain and had suffered a permanent aggravation of his preexisting condition with recurrent disc herniation as a result of the March 1, 2021, work injury. He concluded that the employee is limited to lifting no more than 25 to 30 pounds, and that the surgery and medical treatment were reasonable, necessary, and causally related to the March 1, 2021, injury.
The employee filed a claim petition on September 13, 2021, alleging wage loss, permanent partial disability, and medical benefits related to the March 1, 2021, work injury. The employer and insurer admitted a right arm injury, which had resolved, and denied primary liability for a low back injury. The matter was heard before a compensation judge on March 1, 2023. The compensation judge found by a preponderance of the evidence that the employee did not suffer a work-related injury to his low back on March 1, 2021, and that the injury to his right arm had resulted in no restrictions or wage loss. She denied the employee’s claims. 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 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 argues that the judge erred in finding that the employee did not injure his low back on March 1, 2021. He asserts that the judge confused his claimed work injury involving his L4-5 disc level with an unclaimed tailbone injury. The employee also argues that the judge erred in finding that the right arm injury was not a substantial contributing factor in his claims for temporary partial disability (TPD) and temporary total disability (TTD) benefits. Because the employee was given work restrictions for his right arm, the employee maintains that the judge’s finding is reversible error. We are not persuaded.
In determining whether the employee sustained a low back injury on March 1, 2021, the compensation judge found Dr. Sherman’s medical expert opinions more persuasive than Dr. Bert’s for various reasons detailed in the memorandum. The compensation judge has the discretion as the trier of fact to choose between competing and conflicting medical expert opinions. Ruether v. Mankato State Univ., 455 N.W.2d 475, 478 (Minn. 1990). The trier of fact’s choice between conflicting medical opinions is upheld unless facts assumed by the expert are not supported by the record or lack adequate foundation. Mattick v. Hy-Vee Foods Stores, 898 N.W.2d 616, 77 W.C.D. 617 (Minn. 2017) (citing Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 365 (Minn. 1986)). A foundation objection to Dr. Sherman’s opinion was not made at the hearing, and the employee cannot raise this issue for the first time on appeal. Mikel v. Allina/United Hosp., No. WC08-152 (W.C.C.A. Oct. 9, 2008); Kelsey v. Lovegreen Indus. Servs., No. WC07-159 (W.C.C.A. Dec. 12, 2007).
The judge weighed the medical opinions of Dr. Sherman and Dr. Bert and determined that Dr. Bert incorrectly stated that the employee had immediate back and leg pain at the time of the work injury and that Dr. Bert had not addressed the employee’s failure to mention any low back pain at the initial clinical visit on March 12, 2021. The judge adopted Dr. Sherman’s opinion that the employee did not injure his low back on March 1, 2021, due to the employee’s extensive low back history, the lack of symptoms for several weeks post-injury, and the likelihood of a spontaneous herniation given the employee’s history.
The employee’s argument that both Dr. Sherman and the judge confused the employee’s specific disc injury with an unclaimed tailbone injury is not supported by the record. The judge specifically found that the employee did not injure his “back” on March 1, 2021, when he slipped and fell at work. (Finding 71.) The judge further found that the employee had poor recall of his prior injuries and treatment, making his testimony unreliable. (Finding 67.) Moreover, she found that radiographic findings showed no coccyx or sacrum abnormality. (Finding 43.) As substantial evidence supports the compensation judge’s finding that the employee did not injure his low back on March 1, 2021, we affirm.
The employee also argues that the admitted right arm injury and resulting restrictions entitled the employee to TPD and TTD benefits. The judge erred, he argues, in failing to recognize the restrictions given to the employee at the March 12, 2021, visit when he first treated for the arm injury. To make a claim for TPD benefits, an employee must show that the work injury resulted in a disability, a loss of earning capacity related to the injury, the ability to work with the disability, and an actual loss of earning capacity. Dorn v. A.J. Chromy Constr. Co., 245 N.W.2d 451, 29 W.C.D. 86 (Minn. 1976). An employee must meet all four elements to be entitled to TPD benefits. Id. Likewise, TTD entitlement requires evidence that the employee is temporarily unable to work or restricted from work due to his injury. Schulte v. C. H. Peterson Constr. Co., 153 N.W.2d 130, 24 W.C.D. 290 (Minn. 1967).
We acknowledge that the employee received restrictions on March 12, 2021, for his right arm thereby establishing a disability. However, the employee testified that he continued to work full-time after the slip and fall (T. at 47) even though he later testified that he could not remember if he lost any time from work due to his right arm injury. Ultimately, he testified that any variation in his wages was not due to his injury, but to the fluctuation in available work. (T. at 64-65.) Testimony from the employer’s representative confirmed that the employee’s restrictions were accommodated by the employer and that any reduction in wages was not due to his alleged injuries. (T. at 80.) Finally, the judge adopted Dr. Sherman’s opinion that the employee did not require restrictions for the right arm in denying wage loss benefits. The trier of fact’s choice between conflicting medical opinions is upheld unless facts assumed by the expert are not supported by the record or lack adequate foundation. Mattick v. Hy-Vee Foods Stores, 898 N.W.2d 616, 77 W.C.D. 617 (Minn. 2017) (citing Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 365 (Minn. 1986)).
It was reasonable for the judge to determine that the employee did not suffer wage loss as a result of the March 1, 2021, right arm work injury, therefore we affirm the judge’s denial of the employee’s claims for TPD and TTD benefits.