Daniel Krumsieg v. Bloomington Metro Mitsubishi, et al., No. WC24-6573 (February 24, 2025)
The Employee suffered a traumatic brain injury (TBI) in 2007 while working for the Employer. At the time of the injury, the Employee was 34 years old, and was considered “morbidly obese” with a height of five feet nine inches and weight of 280 pounds. He had been previously diagnosed with bipolar disorder and severe obstructive sleep apnea. The Employer and Insurer admitted liability, ultimately stipulated that the Employee was permanently and totally disabled, and paid workers’ compensation benefits.
After the 2007 work injury, the Employee’s pre-existing obesity and sleep apnea conditions worsened, and he developed type II diabetes, high cholesterol, high blood pressure, and low testosterone – all of which he attributed to the TBI. The Employer and Insurer disputed the Employee’s claim that his diabetes, obesity, high cholesterol, high blood pressure, sleep apnea, and low testosterone conditions were related to the April 9, 2007, work injury. The Employee also claimed a permanent partial disability (PPD) rating of 95 percent plus 20 percent pursuant to Minn. R. 5223.0360. The Employer and Insurer disputed this claim and stipulated that the Employee was entitled to, and was being paid, PPD benefits for a rating of 81.568 percent.
Following the work injury, several medical professionals treated and/or offered their medical opinion regarding the relationship between the work injury and the employee’s obesity, high cholesterol, sleep apnea, and low testosterone conditions.
The compensation judge found that the Employee’s diabetes and high blood pressure were causally related to the work injury, but that his obesity, high cholesterol, sleep apnea, and low testosterone conditions were not. The compensation judge denied the Employee’s claims for additional PPD benefits and penalties. The Employee appealed.
The compensation judge found that the Employee did not prove by a preponderance of the evidence that the work-related TBI was a substantial contributing factor to his obesity, high cholesterol, sleep apnea, and low testosterone conditions. The compensation judge found that the Employee was obese before the injury and reasonably concluded that the obesity was not causally related to the work injury. High cholesterol was diagnosed in 2010, but there was no explanation as to its relationship to the work injury. The compensation judge adopted the medical opinions of Dr. Burgarino and Dr. Cornelius who did not draw a causal link between the pre-existing sleep apnea and the work-related TBI. Similarly, no causal connection was found between the work injury and the low testosterone condition.
The Employee argued on appeal that Dr. Burgarino lacked the necessary foundation on which to base his opinion, such that the compensation judge erred in adopting Dr. Burgarino’s opinion. WCCA disagreed. The court found that Dr. Burgarino’s opinion was based on enough facts to form a reasonable opinion that is not based on speculation or conjecture. The court noted that Dr. Burgarino had the necessary foundation upon which to base his opinion under the Hudson and Gianotti standard.
The Employee also maintained that evidence was destroyed during litigation and this spoliation of evidence required a reversal of the compensation judge’s decision. Dr. Burgarino admitted to destroying the notes he wrote in the course of his examination of the Employee, as well as the draft reports written before the final report was edited by non-medical staff employed by the medical expert firm. The compensation judge denied the Employee’s motion to draw a negative inference from Dr. Burgarino’s destruction of notes. The compensation judge noted that the Employee cited no authority requiring a medical expert to retain all notes used in formulating an opinion. The court found that there was no duty to do so under the Workers’ Compensation Act. The Employee did not make an adequate showing as to how the medical expert’s work product was relevant or how its destruction was prejudicial. The compensation judge declined to impose the sanction, and the WCCA concluded that the compensation judge did not abuse her discretion in denying the Employee’s motion, and affirmed.
With regard to the PPD rating issue, compensation judge found that the Employee’s condition had deteriorated since his Parkinson’s diagnosis which was not claimed as a work injury, and that the Employee did not require assistance with all activities of daily living. Dr. Burgarino opined that the Employee’s condition did not rise to the level of a 95 percent PPD rating. The compensation judge determined that Dr. Burgarino’s opinion was more persuasive than that of Dr. Dorland, which she determined was not well supported by the record. The court found that it was reasonable for the compensation judge to conclude that the Employee did not meet his burden in proving entitlement to the 95 percent PPD rating.