CAROL J. DIETZ, Employee/Appellant, v. VOHS ENTERS. and AP CAPITAL GROUP, Employer-Insurer.
WORKERS= COMPENSATION COURT OF APPEALS
APRIL 20, 2007
MAXIMUM MEDICAL IMPROVEMENT - SUBSTANTIAL EVIDENCE; TEMPORARY TOTAL DISABILITY. Where it was supported by the 2004 formal MMI opinions of a neurosurgeon and a neuropsychologist and also by records of the employee=s extensive treatment by no fewer than ten other doctors, none of whom had offered an opinion that the employee had not reached MMI, the compensation judge=s conclusion that the employee had reached MMI over ninety days prior to her 2005 termination from employment, and so was not entitled to recommencement of her temporary total disability benefits from the date of her termination, was not clearly erroneous and unsupported by substantial evidence.
MEDICAL TREATMENT & EXPENSE - REASONABLE & NECESSARY. Where it would have been reasonable for the compensation judge to conclude from the statements of medical experts recommending chronic pain treatment that there was little to be gained by further diagnostic expense, where there was no evidence of record that the employee=s neuropsychological IME upon recommendation of a neurosurgical IME had been intended to be a Aneutral@ examination or was otherwise prejudicial to the employee, and where at any rate the employee had had ample opportunity to correct any related misunderstanding prior to the original neuropsychological examination, the compensation judge=s denial of the employee=s request for a repeat neuropsychological evaluation was not clearly erroneous and unsupported by substantial evidence.
Determined by: Pederson, J., Johnson, C. J., and Wilson, J.
Compensation Judge: Danny P. Kelly
Attorneys: Robert T. Brabbit, Brabbit & Salita, Minneapolis, MN, for the Appellant. Carrie I. Jacobson, Brown & Carlson, Minneapolis, MN, for the Respondents.
WILLIAM R. PEDERSON, Judge
The employee appeals from the compensation judge's finding of maximum medical improvement and from the judge=s denials of temporary total disability benefits and payment for neuropsychological testing. We affirm.
On February 25, 2002, Carol Dietz sustained injury to her head when she fell down a flight of about fourteen stairs in the course of her bookkeeping/sales job with Vohs Enterprises, a flooring company in Faribault, Minnesota. Ms. Dietz [the employee], who was fifty-four years old on the date of the injury, was attended to by paramedics and air-lifted immediately to the emergency room at District One Hospital in Faribault, where she was examined by Dr. Dale Bohlke. Dr. Bohlke reported that the paramedics had found her collapsed at the foot of the stairs, alert and awake but disoriented and with marked swelling of the face, without any evidence as to how many of the stairs she had fallen down. Dr. Bohlke diagnosed concussion, possibly more significant brain injury, and trauma to the left side of her face, and the employee was transferred to North Memorial Healthcare in Robbinsdale. The employee was treated there the same day by Dr. Jeffrey Elder, who diagnosed a closed head injury with suspected occult facial fracture and ordered a CT scan of the head. The scan was read to reveal no apparent fracture, but small hemorrhages at the gray-white junction in the high right frontal region of the brain, a subtle contusion with minimal associated hemorrhage at the lateral aspect of the right temporal lobe, a minimal amount of blood adjacent to the anterior part of the right frontal lobe, and extensive soft tissue swelling over the left side of the face and skull. The employee=s care was transferred to trauma specialist Dr. Alan Beal, who diagnosed A[m]ild traumatic brain injury, i.e. concussion@ with A[p]ossible occult facial fracture on the left,@ prescribed elevation of the head and ice treatment, and referred the employee for neurological examination. The following day, February 26, 2002, the employee was examined by neurologist Dr. Robert Roach, who diagnosed a moderate closed head injury with brief loss of consciousness and authorized mobilization of the employee as tolerated.
Upon her release from North Memorial Healthcare after about a two-day stay, the employee returned to Faribault and commenced treatment on March 8, 2002, with her family physician, Dr. Michael Hildebrandt. Dr. Hildebrandt diagnosed, in part here pertinent, a fall with Aloss of consciousness and closed head injury concussion but no further dangerous sequelae,@ some occasional but improving mild double vision, and headache, and he referred the employee to ophthalmologist Dr. Michael Richie. Upon follow-up on March 19, 2002, Dr. Hildebrandt noted slight improvement in the employee=s ongoing headaches and gradual improvement in her soft tissue injuries including the bruises to her face, but he diagnosed also extreme fatigue and ongoing double and blurry vision. Dr. Richie examined the employee the following day, on March 20, 2002, on which date he diagnosed periorbital trauma with closed head trauma, diplopia since the injury, mild ptosis of the left eye, and a probable fourth nerve palsy. Contrary to the wishes of the employer, the insurer had initially denied coverage, based on an idiopathic fall defense, but, following a letter from Dr. Hildebrandt on April 9, 2002, the insurer commenced payment of benefits.
On April 17, 2002, the employee was examined again by Dr. Roach, who diagnosed recovery from a moderate closed head injury about seven weeks earlier, together with a posttraumatic left fourth nerve palsy. Dr. Roach permitted the employee to return to work half days, first three days a week and then, after two weeks, five days a week for two more weeks. On May 22, 2002, Dr. Roach recommended that the employee continue working four-hour days until June 3, 2002, when she was to increase to six-hour days until June 26, 2002. When he examined her again on June 26, 2002, Dr. Roach noted that the employee was continuing to recover slowly from her closed head injury, with severe postconcussive headaches daily. Noting that she had reported being unaware of any significant cognitive deficits for the time being, he recommended that the employee continue to work only six-hour days, and he referred her for evaluation by neurologist Dr. Irfan Altafullah at the Minneapolis Clinic of Neurology with regard to her headaches.
The employee was examined by Dr. Altafullah on July 18, 2002, to whom, in addition to headaches, she complained of fatigue, balance problems, dizziness, and light-headedness, which complaints the doctor reported to be indicative of postconcussion syndrome. On that diagnosis, Dr. Altafullah recommended a change in medication for the headaches, four to six sessions of physical therapy for treatment of some of the cervicogenic stimuli for headaches, and an MRI scan of the brain. The scan, which was performed on that same date, was read to be normal. On September 19, 2002, physical therapist Paul Hougan wrote to Dr. Altafullah, informing him that six sessions of physical therapy had not been helpful in relieving the employee=s headaches for Aa day or even a moment,@ and he declined to recommend any further physical therapy.
The employee continued to treat with Dr. Richie through September 25, 2002, when Dr. Richie=s diagnosis was postconcussive syndrome with persistent but improving headaches, persistent convergence insufficiency with diplopia, resolved traumatic fourth nerve palsy, and resolved traumatic ptosis. On December 17, 2002, the employee was examined by neurologist Dr. Jessica Heiring, a colleague of Dr. Altafullah at the Minneapolis Clinic of Neurology, for a second opinion regarding her headaches. On essentially no new findings, Dr. Heiring diagnosed posttraumatic headaches and made essentially no new recommendations other than a prescription for some additional medications.
On January 27, 2003, after following the employee for about a year, Dr. Hildebrandt indicated that the employee Awould benefit from some psychologic counseling in terms of stress management and pain management issues.@ He offered the employee a list of county mental health providers and discussed with her the use of an antidepressant, but she declined the option of antidepressants and apparently did not pursue the counseling. About three months later, on April 17, 2003, Dr. Heiring recommended acupuncture, having apparently persuaded the employee to begin on Prozac in February of that year and noting that the employee, still working six hours a day, often at a computer, was still experiencing daily headaches. Dr. Heiring examined the employee again on September 3, 2003, on which date, noting that the employee=s headaches were still daily although her visual symptoms had resolved, the doctor recommended botox injections to Asee if this could break [the] neck pain and headache cycle@ and to help decrease some of the employee=s reliance on medication. Dr. Heiring saw the employee again on January 29, 2004, on which date the employee could report no significant improvement, and Dr. Heiring considered cessation of botox injections in three months if no benefit was realized. The employee saw Dr. Heiring again on May 3, 2004, by which date her headaches had not decreased in frequency but had become less severe, and botox injections were continued, along with other medications.
On May 17, 2004, neurosurgeon Dr. Mark Larkins reported to the employer and insurer on an independent medical evaluation [IME] of the employee that he had conducted on April 13, 2004. In his May 17, 2004, report, Dr. Larkins opined in part that, A[f]rom a physical standpoint,@ the employee was capable of working full time without any physical restrictions. He opined also, however, that the employee=s work injury remained a substantial contributing factor in her disability and need for treatment and that she had not yet reached maximum medical improvement [MMI] with regard to that injury in that she still had Aat least complaints of her fourth nerve palsy, and chronic headaches as a result of this@ and Athere may be restrictions based upon cognitive impairment that are not apparent.@ Therefore, he indicated, Aneuropsychological testing may need to be performed.@ Subsequently, on June 3, 2004, Dr. Larkins clarified his report of May 17, 2004, stating that, A[f]rom a physical standpoint, [the employee] has reached Maximum Medical Improvement@ but that, Ain regard to her cognitive status, I must defer to a neuropsychologist.@ He indicated further that this clarification Adoes not alter my opinion that [the employee] is capable of working full-time without restrictions.@ On June 8, 2004, Dr. Larkins= report to this effect was served on the employee.
The employer and insurer had evidently scheduled a neuropsychological examination of the employee by Dr. Steven Morgan on July 22, 2004, but by letter of June 10, 2004, the employee refused to attend that examination, on grounds that she had already recently attended an IME, with Dr. Larkins. Subsequently, by letter dated July 16, 2004, and apparently pursuant to oral discussions not of record, the employee=s attorney suggested an evaluation by licensed psychologist Dr. Gary Krupp at the Noran Neurological Clinic.
On July 23, 2004, the employee was examined again by Dr. Hildebrandt, who concluded in part at that time that the employee Ais probably into a chronic pain situation now that is going to be long termA and that A[c]ertainly a pain clinic would be beneficial but I would doubt that worker=s comp would be willing to pay for that and she would not be able to on her own.@ On October 20, 2004, Dr. Hildebrandt concluded, AI do not believe that [the employee] will realistically be able to increase her hours or do any more work tha[n] she=s presently doing.@
On October 26, 2004, the employer and insurer=s attorney, Carrie Jacobson, wrote to Dr. Krupp, thanking him for agreeing to examine the employee and explaining to him that her office represented the employer and insurer in the matter. In her letter, Ms. Jacobson provided the doctor with a detailed, nearly four-page history of the employee=s injury and subsequent treatment, stating immediately thereafter, AIn light of Dr. Larkins= recommendation, we request that you conduct an independent neuropsychological examination.@ Ms. Jacobson enclosed copies of medical records from eight of the employee=s providers, together with a copy of the transcript of deposition testimony taken of the employee on June 24, 2002, asking Dr. Krupp to state his opinion, based on those materials, on six questions pertaining to the employee=s neuropsychological condition and its relationship to her work injury. The employee was not carbon copied in on the letter.
On November 4, 2004, the employee was examined by Dr. Krupp. In his report signed November 15, 2004, Dr. Krupp observed that the employee=s medical records reflected a family history noteworthy for a sister with migraine headaches and probable hypertension among the employee=s father and at least one if not both of her two sisters. Dr. Krupp noted also that the employee=s first trial on a symptom validity test had been below average but that she had scored well within the normal range on the second trial and that, A[a]s such, motivation is judged as adequate in order to obtain an accurate assessment@ of her present neuropsychological abilities. Based on his testing, Dr. Krupp opined that, while it was likely that the employee=s work-related injury had resulted in temporary cognitive impairment, any cognitive impairment had largely resolved by four months post injury, and the employee Aappears to have recovered fully to her baseline level of neuropsychological functioning.@ Dr. Krupp did acknowledge, however, that it was Apossible that [the work injury] contributed to the degree of emotional stress that persists,@ which he had concluded was Apotentially disabling,@ that A[t]he prognosis for the latter is guarded,@ and that Agreater recovery is likely with successful psychological intervention to treat her chronic pain.@ It was Dr. Krupp=s further opinion that treatment for the employee=s work-injury-related cognitive condition had been reasonable and necessary, A[s]pecifically, follow-up neurological care by Drs. Altafullah and Heiring to treat posttraumatic headaches was reasonable.@ Dr. Krupp recommended that the employee now consider chronic pain rehabilitation treatment for her headache, Awhich appears to be the primary physical symptom related to the [work-related] slip and fall injury.@ Finally, Dr. Krupp concluded that, although she did appear to be limited by persistent physical rather than cognitive difficulties, the employee was subject to no specific neuropsychological limitations or restrictions and could feasibly work full time from a neuropsychological standpoint, having reached MMI with regard to her Aneuropsychological abilities@ conservatively by February of 2003, one year after her work injury. Dr. Krupp=s report to this effect was served on the employee on November 29, 2004.
By December 2004 the employee had reduced her work hours to four per day and was continuing to experience daily headaches. On December 15, 2004, the employee was examined again by Dr. Hildebrandt, who disputed Dr. Krupp=s opinion that the employee was able to work full time, concluding that Ashe should continue on her present schedule of four hours a day since she does seem to be doing better on that and this was in fact the suggestion of her employer.@ Dr. Hildebrandt also acknowledged Dr. Krupp=s conclusion that the employee had reached MMI in February of 2003 from a neuropsychological standpoint. He indicated that he and the employee had Adiscussed this issue at great length today,@ adding only that A[s]he has an attorney involved also and she knows that this is really the only available next step to her in terms of contesting the worker=s comp determination of maxim[um] medical improvement.@ On December 23, 2004, Dr. Hildebrandt wrote a letter ATo Whom it May Concern@ reiterating his opinion that the employee was not able to work full time, either from a physical standpoint or from a neuropsychiatric standpoint.
When she saw the employee again on March 1, 2005, Dr. Heiring noted that botox injections had been of no help and that Ano intervention has decreased frequency,@ although the severity of the headaches seemed to have been diminished with medication. On those observations, Dr. Heiring anticipated that headaches would be Aa long term issue@ for the employee, and she recommended continued medication and a chronic pain clinic evaluation. The employee evidently did not pursue a chronic pain clinic evaluation.
On March 16, 2005, the employee was examined by osteopath Dr. Kenneth Britton, who had been recommended to her upon her own inquiry by the Brain Injury Association of Minnesota. Upon examination, Dr. Britton diagnosed chronic cervicogenic headache, together with traumatic brain injury with persistent short-term memory impairment and generalized cognitive impairment, all consequent to the employee=s February 2002 work injury. On that diagnosis, Dr. Britton recommended a return to physical therapy, continuation with the same medications, consideration of steroid injections, and a follow-up evaluation in four weeks. On April 15, 2005, Dr. Heiring disagreed with Dr. Britton=s opinion that the employee=s headaches were primarily cervicogenic, opining that, while it might worsen their frequency, neck spasm was not the cause of the employee=s headaches.
On June 3, 2005, concluding that the employee=s physical therapy objective had been attained and that the current treatment plan Awill no longer produce any more restorative benefit,@ physical therapist Hougan recommended that the employee be discharged from further physical therapy. Upon examination of the employee on June 29, 2005, Dr. Britton expressed concern that the employee=s physical therapy, although it appeared to have produced short-term benefits, had not addressed Athe underlying long-term mechanical dysfunctions that are the sources of cervicogenic cephalgia.@ On that observation he recommended an occupational therapy evaluation with a brain injury therapist, evaluation by a physical therapist for evaluation of the employee=s underlying mechanical abnormalities, a Aformal and comprehensive neuropsychological evaluation@ pending the occupational therapy evaluation, and possible medication adjustments.
On September 29, 2005, the employee commenced psychological counseling with Dr. Kristi Hyink-Huttemier, who diagnosed a cognitive disorder not otherwise specified, together with adjustment disorder with depressed and anxious mood. Dr. Hyink-Huttemier noted that the employee was Aresponsive to psychotherapeutic interventions,@ and she planned to follow up on Aspecific coping skills to assist [the employee] in her adaptation as well as cognitive and behavioral techniques that she can learn to address underlying negative thinking patterns as she continues to adapt to the difficult adjustment to brain injury.@ On October 24, 2005, Dr. Hyink-Huttemier reported that the employee was Abecoming more accepting of her current cognitive functioning, making plans and evaluating her thoughts in a more accurate fashion.@ By October 27, 2005, the employer had concluded that it did not have a suitable job for the employee, and as of October 28, 2005, the employee=s employment with the employer was terminated. Subsequently, failing to submit evidence of any earnings, the employee ceased receiving temporary partial disability benefits.
On November 3, 2005, Dr. Hyink-Huttemier reported that the employee Aappears to be actually fairly stable and reports some improvement of emotional symptoms and a more positive outlook,@ and she indicated that she was planning to reduce her sessions with the employee and would Acontinue to assess [the] need for ongoing sessions.@ On November 10, 2005, the employee=s attorney wrote to the employer and insurer=s attorney, reiterating an apparently earlier request, not here of record, for approval of another neuropsychological examination and requesting recommencement of temporary total disability benefits as of October 29, 2005. On November 17, 2005, Dr. Hyink-Huttemier reported that the employee was reporting improvement in the intensity and frequency of negative mood states, and she indicated that she would be seeing the employee every other week Ato provide cognitive behavioral therapies focused on decreasing periods of depression and worry and sleep disturbance.@ On November 30, 2005, the employer and insurer=s attorney denied both of the employee=s requests of November 10, 2005, asserting that a repeat examination was not reasonable and necessary because the employee had already been examined by a mutually agreed-upon neuropsychologist and that employee was ineligible for recommencement of temporary total disability benefits because her termination from employment had occurred more than ninety days after she had reached MMI from the effects of her work injury.
On December 2, 2005, the employee filed a claim petition, alleging entitlement to temporary total disability benefits continuing from October 28, 2005, and, in their answer filed December 8, 2005, the employer and insurer reiterated their denial. On December 13, 2005, the employee filed a medical request seeking a A[n]europsychological examination as recommended by Dr. Britton,@ and on December 19, 2005, the employer and insurer filed a medical response, denying that request on grounds that another examination was not reasonable and necessary, in that Dr. Krupp had already performed a thorough neuropsychological examination. On December 22, 2005, Dr. Britton suspended further physical and occupational therapy, pending commencement of trigger point injection therapy. An administrative conference was held on the medical request on January 9, 2006, and on January 18, 2006, a decision and order were issued from which both parties filed requests for formal hearing. The employee also amended her claim petition to allege entitlement to penalties, on grounds that the employer and insurer had discontinued benefits without filing a notice of their intention to do so, and all matters were consolidated for hearing by order of April 4, 2006.
On March 29, 2006, the employee had been examined again by Dr. Britton, who had recommended continued physical and occupational therapy but no further trigger point injections, noting that two previous such treatments had resulted in one or two days= relief of trapezius muscle pain but no persistent benefit. In a letter to the employee=s attorney dated June 19, 2006, Dr. Britton opined in part that, consequent to chronic cervicogenic headaches and higher level cognitive impairments related to her February 2002 work injury, the employee was A[not] able to engage in any significant gainful employment in the foreseeable future.@ Although he did recommend ongoing physical therapy and an independent exercise program, he did not anticipate any significant change in that status and so concluded that the employee qualified for permanent and total disability. In a separate letter on that same date, Dr. Britton indicated also that he had reviewed a surveillance videotape of the employee handling groceries and playing video machines at a gambling casino and that he saw nothing in the tape that surprised him or would lead him to change his opinion.
The matter came on for hearing on June 29, 2006. Issues at hearing included the following: (1) whether the employee was entitled to temporary total disability benefits continuing from October 28, 2005; (2) whether the neuropsychological examination as recommended by Dr. Britton on June 29, 2005, subsequent to Dr. Krupp=s examination on November 4, 2004, was reasonable and necessary to cure and relieve the effects of the employee=s February 2002 work injury; and (3) whether the employee was entitled to an additional award in penalties under Minnesota Statutes ' 176.225, subdivision 1, on grounds that the employer and insurer had presented a frivolous denial and had discontinued benefits without filing a Notice of Intention to Discontinue Benefits. Evidence submitted at hearing included the surveillance videotape of the employee playing video poker games at a gambling casino on December 17 and 18, 2005. Evidence also included the employee=s own testimony, in part that her meeting with Dr. Krupp personally had lasted only a few minutes. By findings and order filed August 25, 2006, the compensation judge determined in part that the employee had reached MMI with service of Dr. Krupp=s opinion on November 29, 2004, after being served also with Dr. Larkins= opinion on June 8, 2004, and that therefore, being more than ninety days post-MMI, she was not entitled to recommencement of temporary total disability benefits on October 29, 2005. On that same basis the judge also denied the employee=s claim for penalties, and he further denied the employee=s claim for a repeat neuropsychological evaluation, apparently based at least in part on Dr. Krupp=s and Dr. Heiring=s recommendations of a chronic pain clinic evaluation. The employee appeals from the judge=s finding as to MMI and from the judge=s denials of temporary total disability benefits and payment for neuropsychological testing.
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.
1. MMI and Temporary Total Disability Benefits
On May 17, 2004, Dr. Larkins reported that the employee was capable of working full time without restrictions from a physical standpoint, but he opined that she was not yet at MMI pending resolution of what appeared to him to be residual neuropsychological and cognitive consequences of her work injury. Then, about two weeks later, on June 3, 2004, Dr. Larkins clarified his opinion, indicating that he did find the employee to be at MMI A[f]rom a physical standpoint@ but was deferring to a neuropsychologist Ain regard to her cognitive status.@ Dr. Larkins= report to this effect was served on the employee on June 8, 2004. Some five months later, on November 15, 2004, Dr. Krupp concluded that the employee had reached MMI with regard to the Aneuropsychological@ consequences of her work injury no later than February 2003, and his report to this effect was served on the employee on November 29, 2004. At Finding 28, the compensation judge found that the employee had reached MMI with regard to her work injury pursuant to the opinions of Dr. Larkins served June 8, 2004, and the opinion of Dr. Krupp served November 29, 2004. The employee=s claim was for recommencement of her temporary total disability benefits continuing from the date of her termination from the employer on October 28, 2005. Minnesota Statutes ' 176.101, subdivision 1(e)(1), provides that, once an injured employee has returned to employment, temporary total disability benefits may be recommenced after termination from that employment only if the termination occurs less than ninety days after the employee reaches MMI from the effects of the injury. Having found that the employee reached MMI no later than November 29, 2004, and in that the employee=s termination on October 28, 2005, had occurred more than ninety days after that date of MMI, the compensation judge denied the employee=s claim for recommencement of her benefits. The employee contends that it was error for the judge to infer from the opinions of Drs. Larkins and Krupp that any medical expert had opined that the employee had reached MMI with regard to her Aemotional injury, chronic pain, depression, . . . fourth nerve palsy and chronic headaches@ and so that it was error for the judge to have denied the employee=s claim for temporary total disability benefits on an MMI basis. We are not persuaded.
"Maximum medical improvement@ is defined in the statute 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, irrespective and regardless of subjective complaints of pain." Minn. Stat. ' 176.011, subd. 25. Further, the date of MMI is an issue of ultimate fact to be determined by a compensation judge, based upon consideration not only of expert opinion but also of the history of improvement, current treatment, pre-existing conditions, proposed future treatment, and other elements of the medical record. See Hammer v. Mark Hagen Plumbing & Heating, 435 N.W.2d 525, 528-29, 41 W.C.D. 634, 639 (Minn. 1989). Although MMI does not generally become legally effective prior to service on the employee of a medical expert=s report that it has been reached, the date of MMI is not determined solely by a physician=s opinion. Id. at 529, 41 W.C.D. at 640. Moreover, evidence that an injured employee continues to receive treatment solely to maintain function is not inconsistent with a finding that MMI has been reached. Patterson v. Denny=s Restaurant, 42 W.C.D. 868, 871 (W.C.C.A. 1989). Nor is the mere possibility that additional treatment might be necessary sufficient by itself to sustain a denial of MMI. See Dodge v. Farmstead Foods, Inc., slip op. (W.C.C.A. Mar. 12, 1992).
In this case, it is reasonable to conclude that Dr. Larkins= June 2004 MMI opinion with regard to the employee=s physical condition fully embraced the employee=s fourth nerve palsy, her chronic headaches, and her possible need for chronic pain treatment. Similarly, it is also reasonable to conclude that Dr. Krupp=s November 2004 MMI opinion with regard to the employee=s cognitive ability fully embraced any work-related emotional injury or depression, to the extent that those conditions may have been at issue in the employee=s claim and affective of her ability to work. Both doctors were evidently furnished with an ample record of the employee=s medical history and appear to have reviewed it. Nor does the employee=s emotional state appear to have substantially deteriorated subsequent to the opinion of Dr. Krupp, as evidenced by the records of Dr. Hyink-Huttemier, who indicated on November 3, 2005, that she was planning to reduce her sessions with the employee in that the employee Aappears to be actually fairly stable.@
Given collectively the formal opinions of neurosurgeon Dr. Larkins and neuropsychologist Dr. Krupp, that the employee had reached MMI from, respectively, both the physical and the cognitive effects of her head injury no later than November 2004, and given also the records of the employee=s extensive treatment by no fewer than ten other doctors - - including three other neurologists, a trauma specialist, and a psychotherapist - - not one of whom offered an opinion that the employee had not reached MMI with regard to that injury, we cannot conclude that it was unreasonable for the compensation judge to find that the employee=s work-related neurological condition had reached its maximum level of substantial improvement with service of Dr. Krupp=s opinion on November 29, 2004, over ninety days prior to termination of her employment on October 28, 2005. Therefore we affirm that finding. See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239. Pursuant to that conclusion, and in light of the provisions of Minnesota Statutes ' 176.101, subdivision 1(e)(1), precluding recommencement of temporary total disability benefits after ninety days post MMI, we affirm also the judge=s denial of the employee=s claim for temporary total disability benefits continuing from October 29, 2005.
2. Neuropsychological Testing
At Finding 31 and Order 3, the compensation judge denied payment for a repeat neuropsychological evaluation of the employee. The employee contends that the judge=s denial is both legally erroneous and factually unsupported by substantial evidence. She contends that the judge was legally obligated and failed to cite reviewable evidence in the record to support his decision. She notes that the judge Asimply states in Finding number 31 >The employee has failed to establish by a preponderance of the evidence entitlement to a repeat neuropsychological evaluation. Dr. Krupp has recommended consideration of chronic pain rehabilitation treatment for the employee=s condition. Dr. Heiring has recommended a chronic pain evaluation,=@ arguing that A[t]hese three simple sentences are insufficient to explain the compensation judge=s denial of the neuropsychological evaluation claim.@ The employee contends further, on a factual basis, that Asubstantial evidence in the record supports the employee=s claim for additional neuropsychological testing,@ arguing that the employer and insurer Asurreptitiously exploited the employee=s agreement to attend a neuropsychological evaluation with a neutral physician@ and so Atilted the playing field@ by Aforward[ing] a biased history and request letter to Dr. Krupp@ prior to the employee=s appointment with him, without copying either the employee or her attorney in on that letter. We are not persuaded.
We would note at the start that it is not the job of this court to assess whether substantial evidence in the record supports a factual conclusion contrary to that reached by the compensation judge - - in this case a claim for additional neuropsychological testing; the court=s function on factual review is only to assess whether substantial evidence exists to support the conclusion actually reached by the judge. See Land v. Washington County Sheriff=s Dep=t, slip op. (W.C.C.A. Dec. 23, 2003); see also Ludford v. Honeywell, Inc., slip op. (W.C.C.A. Mar. 17, 2004); Moe v. Dr. Matthew A. Gahn, slip op. (W.C.C.A. Dec. 31, 2003); Redgate v. Sroga=s Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988) (Awhether [the appellate court] might have viewed the evidence differently is not the point, but whether the findings of the compensation judge are supported by evidence that a reasonable mind might accept as adequate@). Therefore, whether or not there may be substantial evidence in the record to support the employee=s claim is not relevant to our review. In this case, we conclude that substantial evidence does exist to support the judge=s denial of payment for the repeat neuropsychological testing at issue and that that evidence is referenced, after all, in Finding 31, however implicitly.
It is evident to this court that the thrust of the judge=s statements in Finding 31 is that Drs. Krupp and Heiring, while perhaps not expressly refuting the reasonableness of additional neuropsychological testing, were advocating in its stead a mode of therapy that they be believed to be more appropriate for the employee, given her medical history and the level and progress of her improvement. While recommending consideration of a chronic pain program, Dr. Krupp had expressly found the employee to be already at her maximum level of improvement, and Dr. Heiring, after resorting to acupuncture and botox modes in addition to conventional medical treatments, had recommended chronic pain treatment on a conclusion that the employee=s headaches were Aa long term issue.@ It would thus have been very reasonable for the compensation judge to have concluded that both of these experts saw little to be gained by further diagnostic expense. Moreover, we find no direct evidence of record that both parties here ever stipulated to any intention that the examination by Dr. Krupp was supposed to be a Aneutral@ one. Dr. Larkins, who had initially recommended the supplementary examination by a neuropsychologist, was an independent medical examiner himself, and that the parties may have mutually agreed on Dr. Krupp as a neuropsychological examiner alternative to Dr. Morgan does not in and of itself demonstrate any intent by the parties that Dr. Krupp=s examination be anything other than another conventional IME. At any rate, the employee obviously had notice of when to appear for the examination with Dr. Krupp, and clearly she could have requested beforehand an opportunity to review the background materials that had been provided to him and opportunity to supplement them as she desired, had she found those materials somehow contrary to what she understood to be the purpose of the examination or otherwise prejudicial to her interests. Because the employee had already undergone substantial neurological and neuropsychological examination by the date of the hearing below, and because the judge=s conclusion on this issue was not otherwise unreasonable, we affirm the compensation judge=s denial of the employee=s request for a repeat neuropsychological evaluation. See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.
 Dr. Larkins had also examined the employee for the employer and insurer about two years earlier, on June 25, 2002. His August 13, 2002, report on that examination is not in evidence.
 We find no evidence as to who made the referenced initial request, as to whether it was written or oral, or as to its date.
 In her notice of appeal, the employee nominally appealed also from the judge=s denial of penalties, but the employee has not briefed the issue, and therefore we will not address it. See Minn. R. 9800.0900, subp. 1 (AIssues raised in the notice of appeal but not addressed in the brief shall be deemed waived and will not be decided by the court.@).
 The employer and insurer have contended that no emotional injury was ever at issue.