DAVID P. STROBEL, Employee/Appellant, v. CITY OF ST. PAUL, Self-Insured Employer/Respondent, and PARK NICOLLET HEALTH SERVS., GRP. HEALTH PLAN d/b/a HEALTHPARTNERS, INC., REGIONS HOSP., MEDICA HEALTH PLANS, and MINN. SPINE INST., Intervenors.

The employee appeals from the compensation judge’s finding that the employee’s work injuries are not a substantial contributing cause to his ongoing cervical spine symptoms and need for treatment.  We affirm.

David Strobel, the employee, worked for the City of St. Paul, the employer, from 1986 through 2004 and then again from 2012 to the present.  Prior to that time, he attended the University of Iowa where he played football for five years, and then participated in training camp for a professional football team for one season.  He was injured playing football, including injuries to his left knee, fingers, ankles, and a concussion.  While working at the City of St. Paul from 1986 through 2004, he injured his knee, head, shoulders, and right bicep.  (T. 52.)

From 2004 to 2012, the employee lived in the State of Washington, where he owned and operated a grocery store.  He returned to Minnesota to work for the City of St. Paul in 2012.  He initially worked in the engineering and inspections division.  After a few years, he began performing damage prevention work, locating utilities in advance of construction projects, and responding to damaged utility incidents.  On December 31, 2014, the employee was repairing a broken water main, when he slipped and fell on ice, landing on his right shoulder.  The employee was able to continue working.  He developed pain in his right shoulder, face numbness on the right side, and neck stiffness in the weeks after the fall.  On February 13, 2015, the employee was examined by Christina L. Cusic, M.D.  The employee complained of right upper back and neck pain with occasional numbness and tingling into his right upper back and right face.  (Ex. P.)  He was referred to physical therapy.  At a follow-up examination with Dr. Cusic on April 16, 2015, the employee was assessed with possible cervical radiculopathy and an MRI was ordered.  A cervical MRI performed on April 21, 2015, showed mild degenerative cervical spondylosis without evidence of significant central spinal canal stenosis and severe degenerative facet arthropathy at C3-4 with bone marrow edema.  The report noted “findings most likely reflect degenerative changes.”  On April 28, 2015, Dr. Cusic noted that the employee had full range of motion of his cervical spine and no obvious right arm weakness on exam.  Dr. Cusic diagnosed the employee with cervicalgia and cervical radiculopathy and noted that he likely had underlying degenerative changes worsened by his fall at work.  (Exs. I, P.)

On June 9, 2015, Kenneth B. Hoj, M.D., performed a neurological examination of the employee.  Dr. Hoj diagnosed the employee with right facial numbness and prescribed a Medrol Dosepak.  Dr. Hoj also recommended a brain MRI which was read as normal.  A cervical epidural steroid injection (ESI) was recommended, but the employee declined as he was able to do all his activities.  (Ex. Q.)

On July 16, 2015, Matthew M. Kang, M.D., examined the employee, who reported persistent right-sided jaw pain and face tingling accompanied by neck pain, especially when he turned his head to the right.  Dr. Kang observed positive Spurling’s to the right.  (Ex. I.)

On July 28, 2015, Bruce H. Leppink, M.D., examined the employee for assessment of a possible ESI.  Dr. Leppink diagnosed the employee with cervical foraminal stenosis and recommended the ESI, which the employee underwent in August 2015.  On September 18, 2015, the employee reported to Dr. Kang that he had overall neck improvement and pain relief following the ESI and requested a repeat ESI. 

The employee returned to Dr. Leppink on December 7, 2016, with neck pain.  Dr. Leppink noted that the employee’s symptoms were most consistent with a soft tissue condition or possible facet inflammation.  He did not think that a repeat ESI would be beneficial as there were no radicular symptoms, and instead prescribed a course of prednisone.  (Ex. 7.)  On January 17, 2017, the employee reported to Dr. Leppink that the prednisone had significantly improved his neck pain.  His cervical examination was normal.  Dr. Leppink noted that the employee has underlying degenerative issues in his neck but was asymptomatic and no further intervention was necessary. (Id.)  The employee testified that his neck never got back to normal following the 2014 injury, that he continued to have stiffness, but that it was not bad enough to seek medical treatment.  (T. 63-64.)

On December 13, 2019, the employee was locating utility lines when he slipped on ice, fell backward, and hit the back of his head.  He testified that he had some vision issues after the fall, but he could not recall if he had any neck pain.  He did not seek medical treatment and did not miss time from work.  (T. 67-68.)

On January 7, 2020, the employee was putting ice spikes on his shoes while responding to a water main break.  The employee lost his balance and fell forward, striking the left side of his head on a van door hinge.  (T. 68-69.)  The employee was examined at urgent care that day and was diagnosed with a concussion without loss of consciousness.  (Exs. I, P.)  The chart note states “[the employee] denies any neck pain or back pain or headache.”  The employee displayed normal range of motion and no tenderness in his neck.  Fozia A. Abrar, M.D., conducted a follow-up examination of the employee on January 9, 2020.  The employee reported mild to moderate symptoms of headaches, nausea, dizziness, blurred vision, sensitivity to light, difficulty concentrating, and fatigue.  He denied neck pain and on examination had full cervical range of motion.  (Id.)  He was referred to physical therapy to start a post-concussion protocol.^[1]  The note from his vestibular therapy initial evaluation dated January 14, 2020, states “[h]e does not have neck pain.”  (Ex. I, Bates 000266.)  The therapy chart notes from January, February, and March of 2020, make no mention of neck pain until March 10, 2020, where it notes that the “[p]atient was not able to tolerate shopping at Costco recently and is noting increased discomfort in his left neck/arm.”  (Id., Bates 000306.)

On November 3, 2020, Brent Warner, M.D., performed an evaluation of the employee’s shoulder.  Dr. Warner suspected cervical radiculitis and ordered a cervical MRI.  The cervical MRI, performed on November 6, 2020, showed prominent facet arthropathy at C3-4 consistent with prior imaging, relatively severe right foraminal narrowing, along with degenerative findings at C4-5 and C5-6.  (Ex. H.)  On November 10, 2020, PA-C Anthony Sterk conducted a spine evaluation of the employee.  PA-C Sterk diagnosed the employee with facet mediated neck pain and left upper extremity dysesthesia secondary to cervical radiculitis, as well as other conditions related to his head injury.  The employee underwent a cervical ESI on November 20, 2020.  On December 7, 2020, he reported to PA-C Sterk an 80 percent improvement in his neck symptoms.  (Ex. L.)  The employee testified that this injection relieved the pressure in his arm and made him feel a lot better, but that subsequent injections provided “very little relief.”  (T. 76, 77.)

On February 2, 2021, Andrew M. Clary, D.O., examined the employee for neck pain as well as symptoms associated with his head injury.  Dr. Clary diagnosed the employee with a fibromyalgia-like condition of persistent nerve pain and prescribed Lyrica.  The employee indicated that his neck pain had improved at a follow-up examination with Dr. Clary on March 16, 2021.  Left lower and upper extremity EMGs taken January 13 and April 4, 2021, showed no evidence of cervical radiculopathy.  (Exs. 9, S.)

On May 28, 2021, Dr. Steven Lockman conducted an independent medical evaluation (IME) of the employee, at the request of his attorney.  Dr. Lockman listed 10 diagnoses, 9 of which were related to the head injury.  Dr. Lockman’s tenth diagnosis was “chronic myofascial pain” in the employee’s neck and shoulders.  Dr. Lockman attributed the employee’s facial numbness to myofascial pain rather than spinal pathology.  Dr. Lockman noted that the employee’s “pain had worsened” following his 2019 and 2020 injuries.  (Ex. D.)

On November 15, 2021, the employee followed up with PA-C Sterk for recurrent left C6 radiculopathy.  On examination, PA-C Sterk concluded that the employee was neurologically intact without myelopathy.  (Ex. L.)

On June 14, 2022, Edwin H. Funk, M.D., assessed the employee for cervical symptoms as well as conditions related to his head injury.  Dr. Funk suggested that the 2019 and 2020 head injuries were most likely the cause of the employee’s symptoms.  (Ex. K.)  The employee underwent a cervical MRI on July 11, 2022, which showed multilevel degenerative changes, persistent severe right foraminal narrowing at C3-4, and moderate foraminal narrowing at C4-C6. (Ex. W.)

On February 8, 2023, Daniel W. Hanson, M.D., conducted an IME of the employee at the request of his attorney.  In his report dated February 9, 2023, Dr. Hanson diagnosed the employee with chronic cervical pain involving either the facet joints or disc space and left C5-6 foraminal stenosis.  He further opined that the 2014 work injury caused the onset of the employee’s cervical pain in the upper aspect of his neck and into his right shoulder, which never completely resolved, and that the 2019 and 2020 injuries caused additional injury to the employee’s cervical spine, more focused to the lower aspect of his neck at the C5-6 level.  Further, he opined that the employee’s pre-existing spondylosis had been aggravated by his injuries and that the 2014, 2019, and 2020 injuries caused permanent injury to the employee’s cervical spine, although he did note that the 2014 injury did not involve the C6 nerve root.  (Ex. E.)  The employee was seen again by Dr. Hanson, this time for treatment, on September 12, 2023.  Dr. Hanson recommended either a surgical C5-6 disc replacement or a C7-T1 ESI and noted that the reported neck pain was associated with a January 7, 2020, work injury.  (Ex. F.)  The employee initially indicated that he wanted to proceed with surgery, but later decided to proceed with the ESI.

On January 26, 2022, William Simonet, M.D., conducted an IME of the employee at the request of the employer and insurer.  In his report dated February 10, 2022, Dr. Simonet opined that the employee suffers from chronic non-radicular neck pain with multilevel degenerative disc disease most significant at C3-4.  Dr. Simonet opined that any symptoms the employee has are manifestations of that condition and are not related to any work injury.  Dr. Simonet concluded that the employee did not sustain a neck or right shoulder injury on December 13, 2019, or January 7, 2020, and that any claimed injuries are not related to the employee’s symptoms or need for treatment.  (Ex. 5.)

In September 2022 the parties entered into a stipulation for settlement.  The stipulation for settlement sets out the employee’s contention “[t]hat the personal injuries of December 31, 2014, December 13, 2019, and January 7, 2020, to his cervical spine and head were permanent in nature,” and that as result of those injuries “… he sustained at a minimum 5% permanent partial disability referrable to the cervical spine….”  The stipulation for settlement also provides that “[t]he Self-Insured Employer denies the allegations of the Employee…” and “[s]pecifically asserts that the injuries to the employee’s cervical spine…were temporary in nature and resolved without any permanent impairment, disability restrictions/limitations, or the need for ongoing medical care or treatment,” and “[s]pecifically denies the Employee has a permanent partial disability as alleged.”  The stipulation then provides that “it is the intent of the parties to arrive at a compromised settlement of the… disputed claims.”  The parties stipulated in paragraph XII that the “employee fully, finally and completely resolves all permanent partial disability claims up to and to the extent of … 10% referrable to the cervical spine.”  In paragraph XX, the stipulation reads “[t]he Self-Insured Employer will pay to the Employee the sum of …$3,940.00 as payment for 5% permanent partial disability rating to the cervical spine….”  (Ex. CC.)^[2]

On October 18, 2022, the employee filed a medical request for approval of the recommended ESI, followed by a claim petition on November 2, 2022, for outstanding medical mileage.  The employee’s claims were consolidated and a hearing was held before a compensation judge on November 21, 2023.  Some of the intervention claims were stipulated to be paid by the employer and insurer.  The issues presented were whether any of the three work injuries are a substantial contributing cause to the employee’s ongoing cervical spine condition and treatment, whether the requested ESI is reasonable, necessary, and causally related to the work injuries, whether reimbursement of the employee’s medical mileage is payable, whether the medical expenses incurred at Minnesota Spine Institute were reasonable, necessary, and causally related to the work injuries, and whether the intervention claims of Park Nicollet Health Services and Medica Health Plans were reasonable, necessary, and causally related to the work injuries.  The employee was the only witness to testify at the hearing.  The compensation judge received voluminous records, background letters to medical experts, and narrative reports as exhibits.

The compensation judge issued his Findings and Order on January 22, 2024, finding that the work injuries of December 31, 2014, December 13, 2019, and January 7, 2020, are not a substantial contributing factor to the employee’s ongoing cervical spine symptoms and need for treatment, that the recommended cervical ESI is not reasonable, necessary, or causally related to the work injuries, and that the employee is not entitled to reimbursement of out-of-pocket mileage.  The compensation judge denied all claims of the employee and the intervenors.  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).

The employee appeals from the compensation judge’s determination that the 2014, 2019, and 2020 injuries were not proven to be a substantial contributing factor to the employee’s present condition.  The employee contends that the compensation judge erred in adopting the opinion of Dr. William Simonet rather than the opinions of the employee’s medical providers.  We disagree.

The employee bears the burden of proving the compensability of his or her claims.  See Swanson v. Fairway Foods, 439 N.W.2d 722, 723, 41 W.C.D. 1010, 1013 (Minn. 1989).  Where the parties dispute whether the need for care arises from a work injury, medical evidence, in the form of medical expert opinion, is evidence that may be relied upon to resolve the question.  Larson v. Mark J. Traut Wells, Inc., No. WC04-337 (W.C.C.A. May 4, 2005) (“expert medical opinion is relevant and often determinative”).  The compensation judge, as trier of fact, has discretion to choose between competing and conflicting medical experts’ reports and opinions.  Ruether v. State of Minn., 455 N.W.2d 475, 478, 42 W.C.D. 1118, 1121 (Minn. 1990); Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985); Gianotti v. Indep. Sch. Dist. 152, 889 N.W.2d 796, 803, 77 W.C.D. 117, 126 (Minn. 2019). 

In this case, the compensation judge adopted the opinions of Dr. Simonet.  (Finding 34.)  A compensation judge’s decision to adopt the opinion of an expert 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).  “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)). 

The parties entered into a stipulation for settlement in 2022.  That stipulation provided, in part, that “[t]he Self-Insured Employer will pay to the Employee the sum of …$3,940.00 as payment for 5% permanent partial disability rating to the cervical spine….”  (Ex. CC.)  The employee argues that since Dr. Simonet did not review the stipulation for settlement, specifically that payment of permanent partial disability benefits had been made, that his opinion lacks foundation.  A medical expert does not need to review every piece of information in order to have adequate foundation for their opinion.  Gianotti, 889 N.W.2d at 802, 77 W.C.D. at 124.  In this case, Dr. Simonet reviewed medical records from ten medical providers, the reports of Drs. Allen, Lockman, Weingarden, and Cole, the imaging studies, and the detailed background summary prepared by defense counsel.  (Ex. 5.)  The September 2022 Stipulation for Settlement did not exist at the time of Dr. Simonet’s report.^[3]

The employee next maintains that Dr. Simonet ignored the asymptomatic nature of the pre-existing disc degeneration before the 2014 injury and that Dr. Simonet’s opinions cannot be reasonably relied upon.  As noted above, Dr. Simonet reviewed voluminous medical records from numerous providers.  His report reflects that he conducted an examination, that he reviewed imaging studies, and that he took a detailed history from the employee.  He discusses the employee’s past medical history, including a prior injury to his right shoulder and a right bicep tendon rupture.  Other than the September 2022 Stipulation for Settlement, there is no fact or piece of evidence that was not reviewed or discussed by Dr. Simonet in his report.  This is adequate foundation for Dr. Simonet’s opinions.  The compensation judge did not abuse his discretion in adopting the opinions of Dr. Simonet.

In addition to the expert opinion of Dr. Simonet, the compensation judge’s findings are also supported by substantial evidence in the employee’s medical record.  The employee had a cervical MRI on April 21, 2015, which showed multi-level degenerative disc disease.  By all accounts, this condition existed prior to the December 31, 2014, injury.  The employee had conservative care following the MRI, including an ESI in July 2015 which relieved all of his symptoms for several months, followed by a 15-month gap in treatment.  He then had a visit with Dr. Leppink in January 2017 at which he reported that his neck “was feeling really good,” and Dr. Leppink noted that “the patient certainly has underlying degenerative issues in his neck but at this time he is asymptomatic so I see no reason for further intervention….”  The employee made no further complaints of cervical symptoms to his medical providers until March 2020, two months after his January 7, 2020, slip and fall injury.  Prior to March 10, 2020, when he mentioned neck pain to his physical therapist, the employee specifically denied neck pain to his providers on January 7, 9, and 14, 2015.  (Ex. I.)

The employee next asserts that since there was a compromised payment of 5 percent permanency to close permanency benefits on the cervical spine to the extent of 10 percent, that there is an admission or an adjudication that the employee’s 2014 work injury is permanent.^[4]  The nature and extent of any injury, or whether any injury was permanent, including the 2014 injury, was not an issue before the compensation judge.  Further, the permanence of the 2014 injury would not, by itself, satisfy the employee’s burden of proving that the effects of one or more of the work injuries are a substantial contributing factor to the employee’s need for the requested medical treatment.  Younghans v. Johnson Bros. Liquor, 77 W.C.D. 381 (W.C.C.A. 2017) (evidence to show that a work injury remains a substantial contributing factor in an employee’s current condition beyond the mere fact that a permanent injury exists is necessary to establish an ongoing causal connection).

The employee further argues that the compensation judge failed to apply the correct analysis as to whether the employee’s December 31, 2014, injury was a temporary or permanent aggravation of his pre-existing condition as discussed in Wold v. Olinger Trucking, Inc., slip. op.  (W.C.C.A. Aug. 29, 1994).  In the case at hand, however, the compensation judge was not tasked with determining whether any of the claimed injuries were temporary or permanent.  Rather, the issue before the compensation judge below was whether any of the work injuries were substantial contributing factors to the employee’s ongoing neck symptoms and need for medical treatment.  The compensation judge adopted the expert opinion of Dr. Simonet, who opined that the employee’s cervical symptoms “were simply a manifestation of his pre-existent cervical spine degenerative disease” and that any treatment would be for “conditions that are naturally occurring degenerative process unaffected by his above claimed injuries.”  (Ex. 5.)  As there was no issue before the compensation judge as to whether any of the injuries were temporary or permanent, the compensation judge had no need to conduct a Wold analysis.

The compensation judge’s finding that the work injuries are not a substantial contributing cause to the employee’s ongoing neck symptoms and need for treatment is supported by substantial evidence of record and is affirmed.^[5]