GREGORY DELINE, Employee, v. FLARE HEATING & AIR CONDITIONING and WESTERN NAT’L MUT. INS. CO., Employer-Insurer/Appellants, and CAMBRIDGE HOSP.., NORAN NEUROLOGICAL CLINIC, P.A., HEALTHPARTNERS, and MEDICA HEALTH PLANS, Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
MARCH 24, 2008
CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence, including expert medical opinion, adequately supported the compensation judge’s decision that the employee had sustained a brain injury in a work-related fall, resulting in left-sided symptoms, including spastic hemiplegia.
Determined by: Pederson, J., Miriam, J., and Johnson, J.
Compensation Judge: Peggy A. Brendan
Attorneys: Thomas A. Klint, Midwest Disability, Anoka, MN, for the Respondent. Ronald M. Stark, Law Office of Ronald M. Stark, Jr., Minneapolis, MN, for the Appellants.
WILLIAM R. PEDERSON, Judge
The employer and its insurer appeal from the compensation judge’s determination that the employee sustained a traumatic brain injury as a result of a work-related fall on October 31, 2003. We affirm.
Gregory Deline [the employee] worked for Flare Heating and Air Conditioning [the employer], installing furnace and air conditioning systems in new residential construction. On October 31, 2003, the employee fell when a stair board came loose as he was carrying an 85-pound furnace down basement steps in a new home. The employee was about four steps from the bottom of the stairs when the incident occurred. The weight of the furnace pulled him forward, and he struck the right side of his head on the concrete floor, with the furnace landing on top of him. He was alone at the time of the accident.
The employee estimated that he was unconscious for 30 to 45 minutes after the fall. When he came to, he called his supervisor, who came to the house and helped carry the furnace, which had been damaged, back out of the basement. The employee then left the job site and went home. He testified that his wife noticed that he had a bump and a bleeding cut on his head, but he did not seek medical care at that time.
The employee testified that, within a week or two of his fall, he began to experience weakness and other trouble with his left leg and foot, which he initially attributed to clumsiness. While he noticed that he had a tendency to trip and fall, he assumed it was nothing serious and that it might be the result of having lost some toes on that foot in the past. Eventually, however, on May 4, 2004, about six months after the work incident, he sought treatment from Dr. Paul Sanders.
Dr. Sanders’ office note from May 4, 2004, reads in part as follows:
His second major concern today is that of a fall, which occurred five months ago pushing a furnace down a set of stairs, a stair broke and the [furnace] fell down the stairs and he fell after it striking the right side of his head on the floor. He sustained a mild headache and contusion at that time, but the headache cleared. He has noted, however, over the last two months increasing weakness on the left side of his body. He reports he is not able to control his left hand using tools at work as well as in the past and notices that his left leg drags especially when fatigued. He says his left side generally feels weaker than the right.
Suspecting possible hemiparesis, that is, muscular weakness restricted to one side of the body, Dr. Sanders referred the employee for an MRI scan to rule out chronic subdural hematoma.
The first MRI of the employee’s brain, performed on May 24, 2004, showed no intracranial hemorrhage, but was remarkable for a “[p]attern of white matter signal abnormality . . . suggestive of demyelinating disease.” Given the possibility of a demyelinating process, Dr. Sanders referred the employee for a neurological consultation, and, over the next several years, the employee was evaluated by several physicians for progressively worsening symptoms in his left foot and leg, including foot drop. Numerous additional scans and other diagnostic tests were performed in an effort to ascertain the cause of these symptoms, but doctors did not agree as to diagnosis.
Dr. Kenneth Hoj, the first neurologist to see the employee on referral from Dr. Sanders, discussed several possible causes in his note from his initial evaluation of the employee on June 3, 2004, writing as follows:
Left sided weakness with associated abnormalities on MRI. We discussed several questions that have come about. Symptoms have all been since the accident occurred. He does have some [MRI] changes, a little bit prominent on the right side. Question comes about as to whether some of this could be more of a problem from a direct head injury itself. The one feature clinically that would go somewhat against that is the delay in terms of when things started to occur, though there potentially can be some delayed demyelination types of processes. Other possibilities that would be of concern could also include ischemic processes. He does not have any risk factors for small vessel ischemic disease, but question of making sure nothing such as a dissection would be in order. We also discussed the possibility of demyelinating disease such as multiple sclerosis in this respect. We also discussed the issue of whether there could be any process as such going on in his neck region, causing problems with positive Lhermitte’s sign and making sure there is nothing suggesting a fracture or compressive abnormality in the spinal cord or an intramedullary type of process. In this request, we should discuss that the multiple sclerosis issue would be somewhat unlikely given his age, though it is not totally out of the realm of possibility though he has not really had symptoms before this.
After additional tests, Dr. Hoj remained uncertain but appeared to be leaning toward a diagnosis of a demyelinating disease, multiple sclerosis, noting at the same time that “[t]he one concern from an MS standpoint is that historically [the employee] has not had any problems to suggest that.”
The employee was also seen, early on, by Dr. David Webster, another neurologist, also on referral from Dr. Sanders. In his report of June 30, 2004, Dr. Webster noted findings of a “giveaway type weakness,” suggesting possible embellishment, hysteria, or malingering, and he observed that the white matter changes shown on the employee’s brain MRI did “not look like those of a typical demyelinating disease.” Finding no definite cause for the employee’s left-sided weakness, Dr. Webster recommended physical therapy and eventual repeat of the MRI scans to see if the white matter changes in the employee’s brain appeared any different. He concluded that it was “impossible to definitively state whether [the employee’s] symptoms are or are not related to the accident that occurred in October 2003,” but he noted that “the symptoms were not present prior to the accident and appeared after the accident which suggests a reasonable cause and effect relationship.” According to subsequent office notes by Dr. Sanders, Dr. Webster ultimately came to believe that the employee’s MRI abnormalities were “consistent with cerebral atrophy secondary to previous trauma including probable subdural hematoma which had resolved by the time the MRI’s were obtained.”
Dr. Steven Lebow evaluated the employee in June of 2005, apparently at the request of the employee’s attorney. In the notes from his initial examination, Dr. Lebow expressed uncertainty as to whether the employee’s symptoms were the result of a right hemispheral brain bleed or whether, given their gradual course, the symptoms were the result of a demyelinating disease. He noted that a demyelinating disease would be unusual given the employee’s “age and the onset and a steady progression to a plateau and no improvement.” Nevertheless, by October of 2005, Dr. Lebow had concluded that the employee did, in fact, have a demyelinating disease, that is multiple sclerosis.
In January of 2006, the employee was seen by Dr. David Kraker, of Advanced Spine Associates, on referral by Dr. Sanders for evaluation of neck and back pain as well as the left leg weakness. Additional tests were performed and, in March of 2006, Dr. Kraker indicated in relevant part that the employee “may have had an ischemic event in his [spinal] cord from the fall,” explaining that he did “not see any other potential cause of his chronic left foot drop” and spasticity.
The employee was also evaluated by Dr. Jane Achenbach, another neurologist, who initially “suspected that [the employee] has had a spinal cord injury related to his accident,” caused either by ischemic compromise to his spinal cord or by contusions. Following further evaluation, Dr. Achenbach reiterated her opinion that the employee had injured his spinal cord in the fall, explaining that the employee did not exhibit features that she would expect with multiple sclerosis “with regard to waxing and waning course and with regard to other white matter changes [on MRI] that would be more suspicious for that.”
Dr. Achenbach subsequently sent the employee to Dr. Mark Gordon, at Sister Kenny Rehabilitation Associates. After his initial evaluation of the employee on March 7, 2007, Dr. Gordon wrote that it was “apparent” to him that the employee “most likely suffered a traumatic head injury secondary to his fall and most likely had a focal area of injury affecting the motor strip on the right [side of the employee’s brain], resulting in mild left hemiparesis and significantly increased tone of the lower extremity, resulting in equinovarus positioning of his left foot.” Dr. Gordon further indicated that the employee’s history and physical examination were simply not consistent with multiple sclerosis.
Finally, the employee was evaluated, on two occasions, by Dr. Gilbert Westreich, the employer and insurer’s independent examiner. Following his first examination of the employee on April 29, 2005, Dr. Westreich questioned whether there was anything “really ‘wrong’” with the employee, indicating that, if he were pushed to make a diagnosis at that time, it would be “a non-organic disease,” because the employee did not “really [have] anything wrong with him neurologically.” However, following a second exam on June 28, 2007, Dr. Westreich reported that the employee had a neurological disease that had clearly worsened since the last examination, that the employee was not faking his symptoms or malingering, and that the specific cause of his symptoms was most likely multiple sclerosis. Dr. Westreich further explained that it was unlikely that trauma had caused the employee’s condition, because, according to Dr. Westreich, traumatic injuries to the brain are almost never progressive.
The matter came on for hearing before a compensation judge for resolution of the employee’s claim for benefits related to his October 31, 2003, fall at work. Notice was admitted; the primary issue was the nature and extent of the employee’s injury. Evidence submitted at hearing included the employee’s medical records, the reports of Dr. Westreich, and the deposition testimony of Dr. Gordon.
In a decision issued on September 13, 2007, the compensation judge concluded that the most likely source of the employee’s left-sided weakness and altered gait was a focal area brain injury substantially caused by the employee’s October 31, 2003, fall. The employer and insurer appeal.
STANDARD OF REVIEW
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 (2008). 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).
In her memorandum, the compensation judge explained her decision as follows:
There has been - as noted early on by Dr. Sanders - a “persistent ambiguity” about the cause of the employee’s left-sided weakness and altered gait. (Employee Exhibit A: 6/24/04 note). The employee’s clinical course has not been typical for any of the conditions the doctors have considered potential causes. Unfortunately, given the present state of medical knowledge it is impossible to know with “absolute certainty” what the cause of the employee’s left-sided weakness and altered gait is. Workers Compensation law, however, does not require absolute certainty. What is required is a “reasonable degree of medical certainty”. And, I have concluded - - after a careful, extremely humble consideration of the facts in this case - - that the employee’s causation theory meets the “reasonable degree of medical certainty” requirement. Among my reasons for concluding there is a causal connection between the employee’s left sided weakness and altered gait and the October 31, 2003, work injury are the following factors:
a) The employee had no clinical signs or symptoms of MS before October 31, 2003.
b) MS is a relatively unlikely diagnosis given the employee’s age. (Employee Exhibit A: 6/2/04 Hoj note, Employee Exhibit D: 6/9/05 Lebow note)
c) The employee’s clinical findings are inconsistent with MS. (Employee Exhibit K: pgs. 50-51, 55-56)
d) The close onset of the left-sided symptoms after the October 31, 2003 fall.
e) Dr. Gordon’s causation opinion. Dr. Gordon’s considerable training and experience with spinal cord injuries and his deposition analysis of the competing theories of causation convinced me that his opinion regarding causation was the most plausible. (Employee Exhibit K)
On appeal, the employer and insurer argue that the compensation judge erred in relying “strictly” on the opinion of Dr. Gordon, who is not a neurologist, when that opinion was contradicted by the opinions of four board-certified neurologists, Drs. Hoj, Westreich, Webster, and Lebow. The employer and insurer also contend that Dr. Gordon’s opinion is based on facts not supported by the record, in that Dr. Gordon had assumed that Dr. Webster had agreed to the brain injury theory when, in fact, the employer and insurer maintain, the records in evidence do not support this interpretation of Dr. Webster’s opinion. The employer and insurer also assert that the “overwhelming medical evidence in this case” supports the conclusion that the employee did not suffer any kind of traumatic brain injury in his October 31, 2003, fall. We are not persuaded.
It is true that Dr. Gordon is not a neurologist. He is, however, board certified in spinal cord injury medicine, and he testified that the employee was referred to him by Dr. Achenbach because he specializes in head injury and spinal cord injury. He further testified that neurology is “a large part of what I do.” Clearly Dr. Gordon was qualified to render an opinion on the nature of the employee’s injury, and the mere fact that he is not a neurologist provides no grounds for reversal.
We are similarly unpersuaded by the employer and insurer’s argument as to Dr. Gordon’s apparent reliance on what he construed to be Dr. Webster’s opinion that the employee had in fact sustained a brain injury in the fall down the stairs. We acknowledge that the records of Dr. Webster’s that are in evidence do not reflect a brain injury diagnosis. However, in two places in his records, Dr. Sanders referred to Dr. Webster as having supported the brain injury theory. Dr. Gordon testified that, in his experience, it would have been unlikely for Dr. Sanders to have made such references without having actually obtained that information from Dr. Webster, and Dr. Gordon suggested that perhaps Drs. Sanders and Webster had spoken on the phone about the case. This is certainly a plausible explanation for the seeming discrepancy.
We also reject the employer and insurer’s contention that the “overwhelming” weight of the evidence compels the conclusion that the employee did not sustain a brain injury in his work-related fall. As the compensation judge noted, most of the physicians involved in the employee’s care have been perplexed by the test results and the unusual course of the employee’s symptoms. Dr. Westreich, the employer and insurer’s examiner, initially reported that there was nothing organic wrong with the employee at all, but all doctors currently appear to agree that the employee is suffering from a spastic hemiplegia and other symptoms that cannot be faked. Several factors, including the employee’s age and the course of his symptoms, weigh against the diagnosis of multiple sclerosis, and Dr. Gordon explained in considerable detail the basis for his conclusion that the employee’s left-sided symptoms were the result of a brain injury. In fact, according to Dr. Gordon, the diagnosis of multiple sclerosis is “laughable,” and he expressly indicated that he had no doubt whatsoever about his own conclusions as to the nature of the employee’s condition.
A compensation judge’s choice between conflicting expert opinions is generally upheld unless the facts assumed by the expert are not supported by the record. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). In the present case, the compensation judge was entitled to rely on the opinion of Dr. Gordon, and the record as a whole, including the opinion of Dr. Gordon, amply supports the judge’s decision that the employee’s left-sided symptoms are a substantial result of a brain injury that the employee sustained in the October 31, 2003, fall. We therefore affirm the judge’s decision.
 The employee did, however, refuse to undergo a lumbar puncture, which had been recommended by doctors suspecting a demyelinating disease. He testified that he was reluctant to undergo the procedure because his wife had experienced complications after having undergone that procedure in the past.
 The compensation judge denied claims for neck and low back injuries, and her decision to that effect is not contested on appeal.