ANDREA BROUGHTEN, Employee/Appellant, v. FOCUS HOMES, INC., and ACE USA, Employer-Insurer.
WORKERS= COMPENSATION COURT OF APPEALS
AUGUST 19, 2002
PERMANENT PARTIAL DISABILITY - SUBSTANTIAL EVIDENCE; APPEALS - STANDARD OF REVIEW; EVIDENCE - EXPERT MEDICAL OPINION. A decision concerning the weight to be given to medical evidence introduced at the hearing is for the compensation judge, and, where it was not unreasonable for the judge to rely on the opinions of the independent medical examiner instead of those of the treating chiropractor, the judge=s denial of the employee=s claim for permanent partial disability benefits was not clearly erroneous and unsupported by substantial evidence, even though there was evidence from which the compensation judge could have reached a different conclusion.
Determined by Pederson, J., Johnson, C.J. and Wilson, J.
Compensation Judge: Carol A. Eckersen
WILLIAM R. PEDERSON, Judge
The employee appeals from the compensation judge=s denial of her claim for permanent partial disability benefits. We affirm.
On January 10, 1999, Andrea Broughten sustained an admitted work-related injury to her cervical, thoracic, and lumbar spine as a result of a scuffle with a resident of a group home, in the course of Ms. Broughten=s work for Focus Homes, Inc. [the employer]. Ms. Broughten [the employee] was nineteen years old at the time. Shortly thereafter, on January 13, 1999, the employee sought treatment at Crow Wing Chiropractic Clinic from Dr. Kent Hardenbrook, D.C., whose records indicate that the employee reported headaches, neck pain, low back pain, and tingling down her legs. Dr. Hardenbrook provided treatment three times a week for the first three weeks and then twice a week during the month of February.
On March 1, 1999, the employee sustained a work-related aggravation of her earlier injury. The employer again admitted liability, and the employee continued to treat with Dr. Hardenbrook. On March 23, 1999, Dr. Hardenbrook reported to the employer=s insurer that he was planning to decrease the frequency of the employee=s visits and that referral to a specialist was not warranted. Over the succeeding year, the employee=s treatment by Dr. Hardenbrook decreased to an average of one treatment per month. In a report to the employee=s attorney dated July 1, 2000, Dr. Hardenbrook indicated that he had last examined the employee on March 14, 2000, on which date the employee had complained of occasional headaches, frequent neck pain, intermittent low back pain, and left sacroiliac pain. The doctor indicated that his examination on that date had revealed restricted range of motion and muscle spasms and hypertonicity in the cervical and lumbar spine. His diagnosis included Apost-traumatic cervical, thoracic and lumbar musculoligamentis sprain@ and Amechanical joint dysfunction: cervical, thoracic, lumbar, and left sacroiliac joint.@ Dr. Hardenbrook concluded the employee had sustained a 13.51% permanent partial disability to her lumbar, lumbosacral, and cervical spine.
On October 30, 2000, the employee filed a claim petition alleging entitlement to permanency benefits in accordance with Dr. Hardenbrook=s opinion. The employer and insurer responded by admitting liability for the injuries but denying that the employee had sustained any permanent partial disability. By a report dated December 11, 2000, Dr. Hardenbrook clarified his permanency opinions by stating that the employee has a 10% whole body impairment related to the cervical spine under Minn. R. 5223.0370, subp. 4C(2), and a 7% whole body impairment related to the lumbar spine under Minn. R. 5223.0390, subp. 4C(1).
At the request of the employer and insurer, the employee was examined by orthopedist Dr. Jack Drogt on February 23, 2001. In a report issued that same date, Dr. Drogt indicated that the employee had had no objective findings on examination to substantiate her ongoing subjective complaints, that he had found her to have normal motion and flexibility, normal neurologic status, and no evidence of spasm. Dr. Drogt concluded that the employee had sustained soft tissue injuries to her neck, mid back, and low back as a result of her work-related injuries but that these conditions had stabilized and resolved to the point at which no objective findings could be discerned on orthopedic evaluation. He opined that there was no objective evidence to support a permanent partial disability rating for the employee.
The employee=s claim for permanent partial disability benefits came on for hearing before a compensation judge on January 25, 2002. In lieu of a formal hearing, the parties submitted the matter to the judge on Astipulated facts,@ exhibits, and written final arguments. Dr. Hardenbrook had rated the employee=s permanency under the radicular syndromes subpart of the applicable permanency schedules, and in her written final argument to the judge the employee argued that she qualified for the same permanency ratings also under the pain syndrome subparts--Minn. R. 5223.0370, subp. 3C(2), and 5223.0390, subp. 3C(1). In a decision issued March 26, 2002, the compensation judge concluded that Dr. Drogt=s opinions were more persuasive than the opinions of Dr. Hardenbrook and, accordingly, denied the employee=s claim for permanent partial disability benefits. The employee appeals.
STANDARD OF REVIEW
In reviewing cases on appeal, the Workers= Compensation Court of Appeals must determine whether Athe 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 (1992). Substantial evidence supports the findings if, in the context of the entire record, Athey 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, A[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.@ Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975). Findings of fact should not be disturbed, even though the reviewing court might disagree with them, Aunless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.@ Id.
On appeal, the employee asserts that the compensation judge Aessentially found that Dr. Hardenbrook=s opinions regarding permanent partial disability are unsupported by objective evidence as required by the permanent partial disability schedules.@ This finding, she contends, is clearly erroneous, is unsupported by substantial evidence in the record, and should be reversed. She points out that, in his July 1, 2000, report, Dr. Hardenbrook notes that his examinations of the employee had revealed hypertonicity of her trapezius musculature and decreased flexion and rotation in all planes of her cervical spine, as well as muscle spasms and hypertonicity in her lumbar paraspinal and gluteous musculature. The employee contends that, because the judge clearly overlooked this evidence in the medical records, the judge=s finding that the employee does not have objective findings to meet the requirements of the permanent partial disability schedules should be reversed. We do not agree.
The employee appears to have incorrectly interpreted the compensation judge=s findings and so to have misstated the issue. The judge=s Findings and Order are based exclusively on the judge=s resolution of a conflict in expert testimony. The employee essentially argues that a preponderance of the evidence supports her claim rather than the position of the employer and insurer. On factual matters such as this one, however, although we are not to look only at the evidence that supports the compensation judge=s findings, it is the task of this court not to assess the substantiality of evidence that would have supported a contrary decision but to assess the substantiality of evidence supporting the decision of the judge. See Hengemuhle, 358 N.W.2d at 59-60, 37 W.C.D. at 239-40 (the court of appeals is not to substitute its view of the evidence for that adopted by the compensation judge if the compensation judge=s finding are supported by evidence that a reasonable mind might accept as adequate); see also Redgate v. Sroga's Standard Service, 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988) (it is not the role of the W.C.C.A. to make its own evaluation of the credibility or probative value of conflicting testimony or to choose from among possible inferences different from those drawn by the compensation judge). Here there is substantial evidence supporting the conclusion of the judge. A trier of fact is not required to accept the opinions of the employee=s treating doctor over the opinion of an independent medical examiner. Resolution of a conflict in the opinions of medical experts is the responsibility of the compensation judge as the trier of fact, and the judge=s decision will not be disturbed so long as there is adequate foundation for the chosen opinion. See Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985) ("the trier of fact's choice between experts whose testimony conflicts is usually upheld [unless] the facts assumed by the expert in rendering his opinion are not supported by the evidence@).
In the present case, the compensation judge accepted the expert medical opinions of Dr. Drogt over those of Dr. Hardenbrook, concluding at Finding 5 that Dr. Drogt=s opinions were Apersuasive.@ There is no evidence or claim that the opinions of Dr. Drogt were based on any false premises or were otherwise without proper foundation. Dr. Drogt clearly and unequivocally stated that his examination of the employee had revealed no objective clinical findings to support a rating of permanency under the rules. The compensation judge was entitled to rely upon this evidence in reaching her determination. A compensation judge=s finding regarding the rating of permanent partial disability is one of ultimate fact and must be affirmed if it is supported by substantial evidence. Hill v. MacKay Envelope, slip op. (W.C.C.A. Jul. 10, 1998), citing Jacobowitch v. Bell & Howell, 404 N.W.2d 270, 39 W.C.D. 771 (Minn. 1987).
We acknowledge that the record in this case is subject to differing interpretations and that there is evidence from which the compensation judge could have drawn different inferences and reached a different conclusion. However, the decision concerning the weight to be given to evidence introduced at the hearing, and whether to accept or reject an expert=s opinion, is for the compensation judge, not this court. Because we cannot say that the judge=s decision to rely upon the opinion of Dr. Drogt was unreasonable or was otherwise clearly erroneous or unsupported by substantial evidence, the determination of the compensation judge is affirmed. Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d at 59, 37 W.C.D. at 239 (Minn. 1984).
 The employee=s Notice of Appeal also included an appeal from the judge=s denial of certain chiropractic charges and out-of-pocket expenses claimed by the employee. The employee has briefed only the permanent partial disability issue, however, and accordingly we address only that issue. See Minn. R. 9800.0900, subp. 1 (issues raised in the notice of appeal but not addressed in the brief shall be deemed waived and will not be decided by the court); see also Anderson v. Stremel Bros., 47 W.C.D. 99 (W.C.C.A. 1992).
 The record on appeal includes the exhibits and written submissions of the parties, but no joint Astipulated facts.@