MAHAD I. QADIID, Employee, v. ACROMETAL COS., INC., and FIREMAN=S FUND INS. CO., Employer-Insurer/Appellants, and FAIRVIEW HEALTH SERVS., CENTER FOR DIAGNOSTIC IMAGING, BLUE CROSS BLUE SHIELD OF MINN., UNIVERSITY OF MINN. PHYSICIANS, and REGIONS HOSP., Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
OCTOBER 12, 2004
CAUSATION - PSYCHOLOGICAL INJURY; EVIDENCE - EXPERT OPINION. The compensation judge=s finding of a psychological injury secondary to a work-related traumatic brain injury is supported by the evidence, including the adequately founded opinion of two treating psychiatrists.
MAXIMUM MEDICAL IMPROVEMENT - SUBSTANTIAL EVIDENCE. Substantial evidence supports the compensation judge=s determination that the employee has not reached MMI from his head injury or the psychological effects of the injury.
WITHDRAWAL FROM LABOR MARKET. Substantial evidence supports the finding the employee did not withdraw from the labor market where the employee had not been released to return to work and was temporarily totally disabled, and the compensation judge accepted as credible the testimony of the employee=s witness that the employee was not working and had earned, at most, $500.00 as a return on his investment in a café the witness owned.
Determined by: Johnson, C.J., Wilson, J., and Pederson, J.
Compensation Judge: Nancy Olson
Attorneys: Thomas J. Peterson, McCollum, Crowley, Moschet & Miller, Minneapolis, MN, for the Appellants. Mark S. Genereux, Genereux Law Office, St. Paul, MN, for the Respondent.
THOMAS L. JOHNSON, Judge
Acrometal Companies, Inc., and Fireman=s Fund Insurance Company appeal the compensation judge=s finding that the employee sustained a closed head injury with consequential psychologic effects, the finding that the employee has not reached medical improvement, and the judge=s finding that the employee had not withdrawn from the labor market to pursue a business venture. We affirm.
On May 1, 2002, Mahad I. Qadiid, the employee, sustained a personal injury arising out of his employment with Acrometal Companies, Inc., the employer, then insured for workers= compensation liability by Fireman=s Funds Insurance Company. The employee was leaning forward to place a part into a machine when a metal door on the machine came down and struck him on the top of his head.
Immediately following the injury, the employee was taken to North Memorial Clinic where he was examined by Dr. Karen Kane. The employee gave a history of being hit on the head by a heavy part which weighed approximately 50 to 80 pounds. The employee reported no definite loss of consciousness, but others observed he was not alert. Dr. Kane reported that when the nurse initially began the intake, the employee was alert and could answer questions, but as the nurse continued, she noted the employee became more disoriented and was slurring his speech. Dr. Kane ordered an ambulance which transported the employee to North Memorial Emergency Room.
Dr. Gail Joyce diagnosed an altered mental status and closed head injury and admitted the employee to the hospital. An x-ray of the cervical spine showed reversal of the normal curvature secondary to positioning or spasm, without fracture. Dr. Joyce=s exam of the employee=s neck was normal with full range of motion. A CT scan of the head was normal. Dr. Bruce Mack, a neurologist, examined the employee on May 3, 2002, and noted no findings of any neurological disease. Dr. Mack doubted the employee had a brain concussion or contusion to the spinal cord. An MRI scan of the brain showed no acute intracranial abnormality. Dr. Daniel Dossa performed a neuropsychological evaluation of the employee and noted the employee seemed to be exerting poor effort with a dramatized quality of performing extremely basic and easy tasks. Dr. Dossa diagnosed malingering, rule out conversion disorder, and a mild head injury. The doctor recommended conservative care and avoidance of falling into any manipulation for secondary gain. An EEG on May 14, 2002, was mildly abnormal which Dr. Norback felt was not inconsistent with recent head trauma. A second MRI scan of the brain was unchanged from the prior study. The employee was discharged from North Memorial Hospital on May 17, 2002.
On May 29, 2002, the employee was admitted to Fairview-University Medical Center with a diagnosis of violence, with abnormal behavior. Dr. Steven Hermann noted the employee presented a puzzling case because there were both elements of exaggerated symptoms, whether voluntary or unconscious, and also a dramatic change in behavior that seemed out of character. The doctor diagnosed psychosis verses mania secondary to traumatic brain injury. Dr. Rogin performed a neurologic examination of the employee on May 31, 2002. The doctor diagnosed a mild head injury with no abnormalities on MRI scans of the brain and cervical spine but with mild degenerative changes and markedly withdrawn behavior out of proportion to the underlying injuries. The employee was discharged on June 6, 2002. Dr. Hermann referred the employee to the outpatient clinic for further treatment.
On August 27, 2002, the employee saw Dr. Richard Timming at HealthPartners. The employee=s wife, who accompanied him, stated the employee=s major problem was cognitive. The employee complained of an inability to stand or walk, although his wife stated that was inconsistent. Dr. Arlt, a neurologist, examined the employee at the request of Dr. Timming. The employee complained of weakness in his legs with an inability to walk, weakness in his arms and headaches. Dr. Arlt diagnosed a history of mild head injury with marked complaints of neurological dysfunction without evidence on examination of true dysfunction. The doctor noted the employee=s ambulation was essentially normal indicating fairly normal motor strength despite marked give away weakness on neurologic testing. Dr. Arlt stated, AWhat is most striking is that Mr. Qadiid=s complaints far outweigh the findings on examination both in the clinic and by radiographic measures. This makes one wonder about secondary gain issues.@ (Resp. Ex. 7.) Dr. Timming ordered physical therapy in September which the employee began on November 15, 2002. The records reflect that as of February 4, 2003, the employee had attended four physical therapy sessions, had cancelled three others and failed to appear for two other sessions.
Dr. Lawrence Jedlicka, a neurologist, examined the employee in January , 2003 at the request of the employer and insurer. The employee complained of cervical and lumbar pain, difficulty walking, irritability, behavioral problems and numbness in his arms and legs in the morning. On examination, the doctor found no objective findings despite significant complaints of cognitive impairment. Following the examination, the doctor watched the employee walk to his car without the use of his cane and noted he entered his small car with no difficulty. Dr. Jedlicka stated a head injury of the type sustained by the employee would not result in the type of significant symptoms expressed by the employee. The doctor did not believe the employee=s complaints were related to the work injury. Dr. Jedlicka opined the employee did not have any physical restrictions related to his work injury which would prevent a return to work. The doctor stated the employee=s psychiatric condition prevented him from working but opined that condition was not work-related. Finally, the doctor stated the employee had reached maximum medical improvement. Dr. Jedlicka later reviewed an additional 500 pages of medical records and, in a supplemental report, again opined the employee had reached maximum medical improvement by January 10, 2003. Dr. Jedlicka rated no permanent partial disability and stated the employee had no restrictions secondary to his work injury.
In May 2003, the employee participated in a work hardening program attending nine two-hour daily sessions. Upon discharge, the employee continued to display pain behaviors but was noted to make progress with walking.
Dr. David Opsahl, a psychiatrist, and Dr. Raymond Sanchez, a psychiatric resident, treated the employee from July 15, 2002, through June 10, 2003, at the Fairview-University Clinic. On June 20, 2003, the doctors issued a joint report stating the employee continued to demonstrate inappropriate behavior, a somewhat depressed variable mood with decreased appetite and sleep disruption. The doctors concluded the employee=s work injury was a substantial contributing factor to the employee=s current psychiatric complaints. The employee=s pattern of complaints, the doctors stated, was consistent with the known syndrome of personality, behavioral and subtle cognitive dysfunction following a head injury. While these complaints did not limit the employee=s physical activities, the doctors opined they did limit complex and job-related activities and activities of daily living requiring significant levels of organization, initiative, planning and judgment. The doctors opined the employee had not reached maximum medical improvement and recommended further rehabilitation efforts.
Dr. John Rauenhorst, a psychiatrist, examined the employee on September 2, 2003, at the request of the employer and insurer. An interpreter was present throughout the interview and, the doctor noted, virtually all of the interview took place through the interpreter speaking Somali. The employee complained of headaches, dizziness, impaired hearing and a sense of heaviness in his legs all of which he attributed to the work injury. Following his review of the medical records and examination, Dr. Rauenhorst diagnosed Bipolar I Disorder which was currently in remission. The doctor stated the employee=s reported symptoms following his injury, the findings on examination and the MRI and CT scans did not demonstrate that the employee sustained a head injury sufficient to cause a bipolar disorder. The doctor opined the employee=s bipolar disorder was not caused by the work injury of May 1, 2002. Finally, the doctor concluded the employee had reached maximum medical improvement by August 2, 2003.
The employee last saw Dr. Timming on September 19, 2003. The employee reported no change in his condition. The doctor=s diagnosis remained mild traumatic brain injury secondary to a work injury, post-concussion symptoms with headaches, vertigo, dizziness, impaired attention, concentration and impaired reasoning with psychological factors contributing to the employee=s physical problems including depression and possible conversion reaction. Dr. Timming felt the employee was not employable and remained totally disabled. The doctor recommended neuropsychological testing and increased physical activity.
The employee had previous injuries as a result of motor vehicle accidents. Following a motor vehicle accident on June 26, 1999, the employee saw Dr. Geoffrey Rurik, D.C., complaining of neck, mid back, low back and left shoulder pain. Dr. Rurik commenced a course of chiropractic treatment and physical therapy. By report dated October 10, 2000, Dr. Rurik concluded the employee had sustained a permanent disability secondary to the 1999 car accident.
The employee was involved in a second motor vehicle accident on June 8, 2001. He sought treatment with Marlyn C. Comes, D.C., at St. Paul Chiropractic, P.A., on June 13, 2001. The employee complained of headaches, neck, thoracic, lumbar and right shoulder pain. In addition, the employee stated that since the accident he had experienced loss of balance and sleeping problems. Dr. Comes instituted a regiment of chiropractic treatments. On October 12, 2001, the employee was seen by Dr. Alfonso Morales at the Central Medical Clinic on referral from Dr. Comes. The employee gave a history of being asymptomatic until June 8, 2001, and since then had experienced neck, low back and shoulder pain. Dr. Morales diagnosed post traumatic cervical and lumbar strain with myofascial pain. The doctor ordered a cervical MRI scan which showed diffuse bulging at C 3-4 and C 6-7 and a lumbar MRI scan which was normal. Dr. Alfonso recommended continued chiropractic care. By April 9, 2000, Dr. Morales reported the employee was doing well but continued to experience muscle spasm, myofascial pain, headaches and neck pain. The doctor again recommended continued chiropractic care.
In December 2002, Nuhumed Ali opened the Kulin Coffee Shop. Mr. Ali owned this business in connection with three other people, one of whom was the employee. The employee contributed $22,000 to the business. Mr. Ali testified the employee was not employed at the coffee shop. He testified the employee was unable to stand for any period of time, forgot things quickly and caused problems with customers. The employee testified he received between $400 and $600 a month from the coffee shop operation. Mr. Ali disagreed and stated that in 2003 the coffee shop paid the employee no more than $500 as a return on his investment.
The employee=s claim for benefits was heard by a compensation judge at the Office of Administrative Hearings. In a Findings and Order, issued February 23, 2004, the compensation judge found the employee sustained a closed head injury on May 1, 2002, but found the employee did not injure his neck or low back. The compensation judge accepted the opinions of Drs. Opsahl and Sanchez that the employee sustained a traumatic brain injury on May 1, 2002, causing a mood disorder, cognitive disorder and an adjustment disorder with anxiety. The compensation judge awarded wage loss and medical benefits and ordered reinstatement of rehabilitation services. The employer and insurer appeal.
1. Psychological Injury
The appellants contend, on appeal, the employee=s claims of a significant psychological impairment are entirely subjective and are unsupported by any objective medical evidence. They further contend the employee=s testimony regarding his subjective complaints was not credible and was exaggerated for the purpose of obtaining workers= compensation benefits. The appellants further assert the employee had similar complaints and symptoms following his June 2001 car accident. Finally, the appellants argue, the employee deliberately failed to disclose to the physicians treating him for his work injury that he was involved in two prior car accidents with medical treatment following each. For these reasons, the employer and the insurer contend the compensation judge=s finding that the employee sustained a traumatic brain injury is unsupported by substantial evidence and must be reversed.
There is merit to the appellants= arguments. The North Memorial Hospital records document no swelling, cuts, or bruises to the employee=s head. The May 2002 CT scan of the head and an MRI of the brain were both normal. Dr. Mack noted no findings of any neurological disease and Dr. Dossa diagnosed malingering. When the employee was again hospitalized at Fairview-University Medical Center, Dr. Rogin diagnosed a mild head injury with no abnormalities on MRI scan of the brain and markedly withdrawn behavior out of proportion to the underlying injuries. Dr. Arlt noted the employee=s complaints were significantly out of proportion to his examination findings and questioned whether the employee was seeking secondary gains. Dr. Jedlicka stated his examination of the employee was normal despite significant complaints of cognitive impairment.
Certainly, there is evidence which, if accepted by the compensation judge, would support a different result in this case. It is not, however, the prerogative of this court to substitute its judgment for that of the compensation judge. Rather, this court must determine whether the findings of fact and the order are Aclearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.@ Minn. Stat. ' 176.421, subd. 1 (1992). Even though this court may disagree with the findings of fact, they should not be disturbed 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.@ Northern States Power Co., v. Lyon Food Prods., Inc., 304 Minn. 196, 229 N.W.2d. 521 (1975).
Dr. Opsahl and Dr. Sanchez related the employee=s psychiatric symptoms to his work injury and the compensation judge accepted their opinions. Admittedly, it does not appear either Dr. Opsahl or Dr. Sanchez were aware of the employee=s 1999 or 2001 motor vehicle accidents, the employee=s complaints following each accident or the treatment he received after each. Since, the respondents argue, the employee=s symptoms following these two car accidents were similar to those the employee reported after the work accident, Drs. Opsahl and Sanchez lacked sufficient foundation to render expert medical opinions. Accordingly, the respondents contend the compensation judge erred in relying on expert opinions which lacked foundation. We disagree.
Dr. Opsahl and Dr. Sanchez reviewed the employee=s medical records subsequent to his work injury and treated the employee at the outpatient clinic of Fairview-University Medical Center. As a general rule, this level of medical expertise and practical experience establishes competency to render an expert medical opinion. Reinhardt v. Colton, 337 N.W.2d 88, (Minn. 1983). Following the 1999 accident, the employee complained of headaches, dizziness, confusion, disorientation, neck, mid-back and low back pain. The employee gave a history of headaches, neck, thoracic and lumbar pain, loss of balance and sleeping problems following the June 8, 2001 accident. The compensation judge, however, found the employee did not injure his neck or back on May 1, 2002. While certainly relevant, there is no evidence the doctors= knowledge of the two car accidents was crucial to their causation opinions. Such lack of knowledge goes to the weight to be afforded the evidence, not to its admissibility. We cannot, therefore, conclude that the opinion of Drs. Opsahl and Sanchez lacked foundation.
Drs. Opsahl and Sanchez based their causation opinion on the employee=s Apremorbid function, the date of injury, onset of symptoms, persistence of symptoms, and, most particularly, the nature of the symptoms and the pattern of the symptoms as related to known syndromes occurring at higher frequency following traumatic brain injury.@ ( Jt.Ex. 9.) While the employee clearly had pre-existing physical injuries and complaints, there is no evidence of cognitive or behavioral problems exhibited by the employee before his personal injury. A friend and business associate of the employee, Nuhumed Ali, testified the employee changed after the accident, arguing with people, starting fights and forgetting things quickly. The employee=s wife also testified that prior to the accident the employee demonstrated no psychiatric problems, memory problems, outbursts of anger or problems dealing with people. There is testimony that after the accident, however, the employee=s behavior changed. This testimony, together with the opinions of Drs. Opsahl and Sanchez, support the compensation judge=s decision. Based upon our standard of review, we are compelled to conclude the compensation judge=s findings and order are minimally supported by evidence that a reasonable mind might accept as adequate. We must, therefore, affirm.
2. Maximum Medical Improvement
The compensation judge accepted the opinion of Drs. Opsahl and Sanchez that the employee had not reached maximum medical improvement (MMI). Although Drs. Opsahl and Sanchez suggested a further neuropsychological assessment, the appellants contend there is no evidence the employee has sought such treatment. Dr. Rauenhorst concluded the employee=s bipolar disorder was in remission and opined the employee reached MMI by August 2003. There is no evidence, the appellants maintain, that the employee received any treatment after seeing Dr. Rauenhorst in September 2003. Accordingly, the employer and insurer argue the compensation judge=s finding the employee has not reached MMI is unsupported by substantial evidence. We disagree.
Maximum medical improvement is defined as Athe date after which no further significant recovery from or significant lasting improvement to a personal injury can reasonably be anticipated, based upon reasonable medical probability.@ Minn. Stat. ' 176.011, subd. 25. Maximum medical improvement Aoccurs upon medical proof that the employee=s condition has stabilized and will likely show little further improvement.@ Polski v. Consolidated Freightways, Inc., 39 W.C.D. 740, 742 (W.C.C.A. 1987). Among the factors to be considered are a history of improvement, current treatment and proposed treatment. Hammer v. Mark Hagen Plumbing & Heating, 435 N.W.2d 525, 41 W.C.D. 634 (Minn. 1989).
In June 2003, Drs. Opsahl and Sanchez stated the employee had not yet reached MMI and recommended a follow-up neuropsychological evaluation, enrollment in a traumatic brain injury rehabilitation program and rehabilitation efforts based on functional assessment, neuropsychological assessment and other assessments performed through a traumatic brain injury center such as the Courage Center. In September 2003, Dr. Timming recommended additional neuropsychological testing and felt some additional physical or occupational therapy would aid the employee in returning to work. In reliance on this medical evidence, the compensation judge concluded the employee had not reached MMI. It does not appear from the evidence of record that the employee obtained any additional treatment after September 2003. A failure to obtain recommended treatment does not, however, mandate a conclusion that MMI has been reached. Rather, an unreasonable delay or refusal of treatment by an employee in order to prolong attainment of MMI may be dealt with by suspension of wage loss benefits. See, e.g., Dotolo v. FMC Corp., 375 N.W.2d. 25, 28 W.C.D. 205 (Minn. 1985); Cotter v. Niro Atomiser, slip op. (W.C.C.A. July 12,1990). The compensation judge=s decision that the employee has not reached MMI is supported by substantial evidence and must, therefore, be affirmed.
3. Withdrawal from Labor Market
At the hearing, the employer and insurer argued the employee had withdrawn from the labor market to pursue self-employment running the coffee shop he owned with others. The compensation judge found the employee was not employed at the coffee shop, and concluded the employee had not withdrawn from the labor market. On appeal, the appellants asssert the employee spent time at the coffee shop several days a week and testified he was there to supervise. The appellants argue the compensation judge=s finding that the employee had not withdrawn from the labor market is contrary to the overwhelming weight of the evidence and must be reversed. We are not persuaded.
Mr. Ali testified the employee was not working at the coffee shop and, in fact, after his injury, Mr. Ali did not want the employee at the coffee shop. Mr. Ali testified that in 2003 the coffee shop paid the employee at most $500.00 as a return on his investment. The compensation judge found the testimony of Mr. Ali to be credible and accepted it. "Assessment of witness= credibility is the unique function of the factfinder." Tews v. Geo. A. Hormel & Co., 430 N.W.2d 178, 180, 41 W.C.D. 410, 412 (Minn. 1988).
The compensation judge also found the employee has not been released to return to work since his injury and awarded wage loss benefits from June 6, 2002, through the date of the hearing. Although the appellants appealed this finding, they made no argument in their brief that the finding was unsupported by substantial evidence or that the employee was not temporarily and totally disabled. An employee cannot withdraw from a labor market which the employee is physically incapable of entering. The compensation judge=s finding that the employee has not withdrawn from the labor market is affirmed.