MICHELLE (HUGILL) KAHL, Employee/Appellant, v. BENTON COUNTY, SELF-INSURED/MINNESOTA COUNTIES INS. TRUST, Employer, and HEALTHPARTNERS, CENTER FOR DIAGNOSTIC IMAGING, PAR, INC., and INSTITUTE FOR LOW BACK AND NECK CARE, Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
MAY 26, 2009
CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence, including expert medical opinion, supports the compensation judge's determination that the employee did not sustain an injury to the lumbar spine, reflex sympathetic dystrophy, or gastrointestinal problems causally related to her July 10, 2002, work injury.
PERMANENT PARTIAL DISABILITY - SUBSTANTIAL EVIDENCE. Substantial evidence supports the compensation judge' findings that the employee was not entitled to benefits for permanent partial disability to the thoracic or lumbar spines or for reflex sympathetic dystrophy.
PERMANENT PARTIAL DISABILITY - DEPRESSION. Where the employee's claim for permanent partial disability for depression was based on ratings by her treating physicians under the brain dysfunction section of the permanency schedule, Minn. R. 5223.0360, subp. 7; no evidence was submitted of any organic brain dysfunction; and the employee made no claim for permanent partial disability under Weber v. Inver Grove Heights, 461 N.W.2d 918; 43 W.C.D. 471 (Minn. 1990), the compensation judge properly denied the employee's claim for permanency for depression under subp. 7.
PERMANENT TOTAL DISABILITY - SUBSTANTIAL EVIDENCE. Substantial evidence, including expert vocational and medical opinion, supports the compensation judge's determination that the employee is not permanently and totally disabled.
Determined by: Johnson, C.J., Wilson, J., and Stofferahn, J.
Compensation Judge: Gary P. Mesna
Attorneys: Kirsten M. Tate and Joseph J. Osterbauer, Osterbauer Law Firm, Minneapolis, MN, for the Appellant. Christopher E. Celichowski, Johnson & Condon, Minneapolis, MN, for the Respondent.
THOMAS L. JOHNSON, Judge
The employee appeals the compensation judge’s finding that the employee did not sustain an injury to her low back; the finding that the employee failed to prove she has reflex sympathetic dystrophy or that it is causally related to her work injury; the finding that the employee failed to prove her gastrointestinal problems were caused by a work injury; the compensation judge’s denial of the employee’s claims for permanent partial disability of the thoracic spine, lumbar spine, reflex sympathetic dystrophy, gastrointestinal problems, and consequential depression; the finding that the employee is not permanently and totally disabled; the finding that the employee does not meet the statutory threshold for permanent total disability benefits; and the compensation judge’s denial of certain medical expenses. We affirm.
Michelle (Hugill) Kahl, the employee, was involved in a car accident on July 10, 2002, arising out of and in the course of her employment with Benton County. The self-insured employer admitted liability for the employee’s personal injury.
Following the injury, the employee was seen in the emergency room and then by Dr. Gayle Crays at the Foley Medical Center on July 11, 2002. Dr. Crays obtained a history from the employee indicating that she was in a car accident, wearing her seatbelt, and struck her head on the side window. The employee reported she did not break or crack the window, but got a “goose egg” on her head without a loss of consciousness. The employee complained of a headache and a small amount of neck pain. Dr. Crays took the employee off work and prescribed Tylenol. In follow-up, the employee complained of significant headaches, neck pain radiating into both shoulders, and upper back tenderness. The employee was restricted to working four hours a day and physical therapy was prescribed.
In August 2002, the employee was seen by Dr. Kevin Stiles at the Foley Medical Center complaining of pain, numbness and tingling in her arm with purplish discoloration. The doctor stated the employee’s symptoms were suspicious for RSD, but noted the employee had a relatively minor injury. His diagnosis was neck injury secondary to a motor vehicle accident with questionable RSD.
In October 2002, the employee saw Dr. Vanda Niemi at the Noran Neurological Clinic on referral from Dr. Stiles. The employee then complained of neck pain radiating into her arms, shoulders, and her right hand with episodes of numbness and tingling in both arms; a tremor in the left arm and hand; daily headaches; and low back stiffness. The doctor referenced a cervical MRI scan obtained on August 13, 2002, that showed a minor posterior disc bulge at C5-6 and a borderline EMG study of the right and left arms in September 2002. On examination, Dr. Niemi noted a coarse supination/pronation tremor of the left forearm that quieted when the employee was concentrating on something else. The balance of the neurological examination was essentially normal. The doctor recommended an MRI scan of the brain, but opined otherwise the employee was experiencing the effects of a musculoligamentous strain or sprain. Dr. Niemi recommended the employee continue to work six hours a day, stated physical therapy was appropriate, and recommended home exercises. An MRI scan of the brain in October 2002 was normal, as was a second EMG in November 2002.
The employee was examined by Dr. Paul Yellin in December 2002 on behalf of the self-insured employer. The employee then complained of neck pain extending into both shoulders, pain in the temporomandibular joint, intermittent numbness in the fingers of the left hand, and stiffness in the mid and low back. Dr. Yellin diagnosed a healed cervical and thoracic strain with no objective findings to substantiate any continuing problems. Dr. Yellin opined no further care or treatment for the 2002 personal injury was required and opined the employee had reached maximum medical improvement with no need for restrictions.
The employee saw Dr. Krishnamurthy, a physical medicine and rehabilitation specialist at the Sister Kenney Institute, on December 20, 2002, on referral from Dr. Niemi. The employee reported headaches two or three times a week; aches and pains in her head, neck, shoulders and arms; numbness and tingling in her arms; sleep disturbance; and depression. The doctor recommended trigger point injections that he administered on several occasions. In January 2003, the employee began treating for depression with Dr. Lea Hogan, a psychiatrist, also on referral from Dr. Niemi.
Dr. Yellin reexamined the employee in May 2003, following receipt of additional medical records which described a low back injury in June 1993, a right elbow injury in September 1996, and an injury to the employee’s left scapula in April 1997. Dr. Yellin also reviewed medical records from Dr. Niemi and from Dr. Hogan whom he noted had diagnosed the employee with a depressive disorder and chronic myofacial pain syndrome. The doctor stated nothing in the additional medical records he reviewed changed the opinions set forth in his December 2002 report. Dr. Yellin again stated the employee demonstrated no significant objective clinical findings to substantiate any continuing problems. The doctor stated the employee was capable of sustained, gainful employment, without restrictions.
Dr. John Hung, a psychologist, examined the employee in June 2003 at the request of the self-insured employer. The doctor reviewed the employee’s medical records, administered psychological testing, including an MMPI, the Beck Depression Inventory, the Beck Anxiety Inventory, and the Shipley Institute of Living Scale, and conducted a clinical interview with the employee. Dr. Hung reported the employee then complained of pain in her neck, left shoulder, left mid-back, left arm, headaches, and temporomandibular joint pain. The employee denied any psychological difficulties prior to her July 2002 personal injury, but, stated thereafter she became irritable, emotional, cried easily, experienced sleep interruption, and was depressed. Dr. Hung diagnosed an adjustment disorder with depressed mood which he described as a mild depression. The doctor opined the employee was at moderate risk for developing a somatoform pain disorder which he defined as a pain disorder associated with both psychological factors and a general medical condition. The doctor concluded the employee’s multiple physical injuries from her 2002 personal injury were a partial cause of the employee’s post-injury depression. Dr. Hung opined the employee’s psychiatric treatment with Dr. Hogan was reasonable and necessary and stated the employee should continue such treatment so long as the employee continued to improve. Dr. Hung stated the employee had not reached maximum medical improvement for her depressive condition.
In November 2003, the employee returned to the Foley Medical Center complaining of abdominal symptoms. Ms. Garrison, a nurse practitioner, noted the employee had problems with reflux in the past for which she had been taking Prevacid. The diagnosis was an exacerbation of the employee’s reflux and Aciphex was prescribed. The employee returned in January 2004 with continued abdominal symptoms, including nausea and vomiting.
An MRI scan of the lumbar spine was taken in September 2004. The scan showed minimal degenerative changes, a small left lateral disc herniation at L4-5, and a very small right paracentral disc herniation at L5-S1 without neural involvement. A cervical MRI scan in November 2004 was normal.
Dr. Yellin examined the employee again in December 2004. The doctor stated the employee’s current complaints were diffuse neck pain with pain and burning into her shoulders and arms, and low back pain radiating into the buttock area and both legs. Dr. Yellin stated his examination of the employee’s spine was negative with no objective findings to substantiate any problems involving the employee’s cervical or lumbar regions. Dr. Yellin opined the employee needed no further treatment for her work injury and stated the employee could work without restrictions.
The employee saw Dr. Erik Eckstrom at the Institute for Low Back and Neck Care in March 2007. The employee complained of continuing neck pain, headaches, numbness in her hands and legs, and thoracic and lumbar pain with radiation of pain into all extremities. The doctor diagnosed torticollis, muscle spasm, neck pain, mid-back pain, questionable left-sided complex regional pain syndrome, and minimal lumbar degenerative disc disease. Dr. Eckstrom ordered a lumbar MRI scan which was performed in March 2007 and showed a minor left lateral disc bulge at L4-5 and a small right-sided disc herniation at L5-S1 without neural compression. A cervical MRI scan was noted to be unremarkable with no significant change from August 13, 2002. An MRI of the thoracic spine showed a minor posterior disc bulge at T2-3 and a normal spinal cord. The doctor then commenced a series of facet joint injections. In June 2007, Dr. Eckstrom’s impression was L5-S1 disc hernation with no neural impingement, low back pain, and questionable left sacroiliac joint dysfunction. The doctor recommended a left SI joint injection. In August 2007, the doctor noted the employee’s cervical and thoracic MRI scans were normal and his impression was L5-S1 lumbar disc herniation, low back pain, diffuse pain, and questionable left SI joint dysfunction. The doctor stated he had nothing further to offer the employee for her diffuse pain issues.
Dr. Hung reexamined the employee in March 2007 and again administered the psychological tests which were completed as part of his 2003 examination of the employee. In addition, the doctor examined updated medical records and conducted a clinical interview with the employee. Dr. Hung diagnosed depressive disorder not otherwise specified, pain disorder associated with both psychological factors and a general medical condition, chronic pain complaints, and psychosocial stressors. The doctor stated the employee demonstrated strong indications of a history of depression prior to her personal injury. However, Dr. Hung opined the employee’s personal injury was a substantial contributing factor to the aggravation or acceleration of the employee’s depression. The doctor stated, however, that his opinion was not within a reasonable degree of psychological certainty because the employee’s self-history was unreliable. The doctor stated the employee’s current cognitive functioning was not impaired, although her memory abilities for high-level attentional tasks appeared to be less than optimal. Despite her depression and focus on her chronic pain, Dr. Hung stated there was no evidence that the employee’s current emotional or personality functioning was impaired with respect to work activities. The doctor stated the employee was currently capable of sustained gainful employment but recommended she not be placed in a job that was highly unstructured or one that required significant and constant initiative.
Dr. Yellin reexamined the employee in April 2007. The employee complained of neck and upper back pain radiating into both shoulders and arms, associated headaches, mid-back pain extending around her rib cage, low back pain, and intermittent numbness and tingling in both legs. Following his review of the medical records and physical examination, Dr. Yellin again concluded the employee demonstrated no objective pathology. The doctor stated the employee had multiple complaints consistent with possible cervical, thoracic, and lumbar strain, but her symptoms appeared to be far in excess of anything noted on objective testing. Dr. Yellin stated the employee had received significant medical treatment, above and beyond what he felt was appropriate, and doubted any further treatment would be of any long term benefit. Dr. Yellin opined the employee reached maximum medical improvement by July 10, 2002, with no permanent disability and was able to work without restrictions.
In a supplemental report, Dr. Yellin opined the employee sustained no permanent disability to her neck, upper back or low back, and opined the employee did not have a reflex sympathetic dystrophy. Dr. Yellin stated headaches, gastrointestinal disturbances, and emotional and personal disturbances were not within his realm of expertise and he would not comment on these complaints.
By report dated October 16, 2007, the employee’s psychiatrist, Dr. Hogan, stated she had then seen the employee 23 times and noted the employee had struggled with depression and back pain for which she had taken several different antidepressants. The doctor opined the employee was not feigning her pain and opined the employee’s pain was a direct precipitant for her depression. The doctor diagnosed depressive disorder in near full remission and chronic pain syndrome. Dr. Hogan opined the prognosis for significant resolution of the employee’s depression was poor because her depression would fluctuate with the intensity of pain she was experiencing. Dr. Hogan stated the employee would have a difficult time finding work sufficiently flexible to accommodate her symptoms and opined she was likely to have problems maintaining sustained gainful employment. Dr. Hogan opined the employee’s depression and its sequelae were causally related to the personal injury of July 2002.
In a supplemental report dated November 1, 2007, Dr. Hogan stated the employee suffered from intermittent emotional disturbance not requiring intervention by a caregiver. The doctor stated the employee demonstrated most of her emotional depression when her pain was intense or when she was under more stress. The doctor referred to Minn. R. 5223.0360, subp. 7.D., and stated the employee’s permanent partial disability by this rating schedule would be less than 5%.
By report dated November 2, 2007, Dr. Stiles rated the employee as having a 7% permanent partial disability for a cervical pain syndrome, a 2.5% permanent disability for thoracic pain syndrome, a 10% permanent disability for the lumbar pain syndrome, a 15% permanent disability for reflex sympathetic dystrophy, 15% for gastrointestinal disturbance, and a 20% permanent disability for central nervous system disturbance of emotional and personality changes.
By report dated November 19, 2007, Dr. Eckstrom stated his current diagnosis was chronic pain syndrome, torticollis, not otherwise specified, extreme paresthesias, left greater trochanteric bursitis, and mild lumbar degenerative disc disease at L4-5 and L5-S1 associated with a disc herniation at L5-S1. Dr. Eckstrom rated a 3.5% permanent disability for the cervical spine, 2.5% for the thoracic spine, and 10% for the lumbar spine. Dr. Eckstrom stated the employee needed evaluation for reflex sympathetic dystrophy by a physician, recommended neurotoxin therapy for the cervical torticollis, a lumbar epidural to evaluate a possible lumbar radiculopathy, and a lower extremity EMG.
Following her injury, the employee continued to work for Benton County performing light-duty desk work until January 2003 when she was terminated. Thereafter, the employee worked for approximately one month at Brotts Group Home. In June 2003, the employee obtained a job as a part-time nurse for Allergy, Asthma & Pulmonary Associates where she worked until July 2006. The employee testified that as her condition deteriorated, she had a difficult time performing her job duties. In November 2006, the employee obtained a job with ARIA, a company that provided the employee with handwriting projects that she performed at home. The employee was paid by the piece and earned approximately $600 over six weeks. The employee testified the repetitiveness of the handwriting bothered her arm and neck. From December 2007 through January 2008 the employee worked for Avalon doing part-time telephone case management, coordination, and assessments. The employee testified she was terminated by Avalon because she was unable to maintain the deadlines that the employer demanded due to a flare up in her condition.
In December 2006, the employee met with John Richardson, a qualified rehabilitation consultant, and Shannon Prudhomme, a rehabilitation consultant intern, with Professional Associates of Rehabilitation (PAR), Inc., for a rehabilitation consultation. Mr. Richardson and Ms. Prudhomme concluded the employee would benefit from rehabilitation services and a rehabilitation plan was prepared focusing on a return to work with a different employer. At the hearing, Ms. Prudhomme testified that since the onset of job placement services, the employee “did the best that she could, but, certainly, we were trying to get her to be more active in the job search.” (T. 160.)
L. David Russell, a qualified rehabilitation consultant, performed a vocational evaluation of the employee in October 2008 at the request of the self-insured employer. Mr. Russell administered certain vocational tests, reviewed the employee’s medical records, and obtained a personal and employment history from the employee. Mr. Russell noted the employee was then 35 years of age, had a high school diploma with technical training and certification as a CNA and LPN, and an Associate’s Degree and certification as a registered nurse. He noted the employee tested at a college-level reading ability in the average range and high/average arithmetic ability. Mr. Russell stated the employee’s work history was primarily short-term jobs lasting from a month to three years maximum. He stated the employee’s work had been primarily skilled to semi-skilled which provided transferable skills including knowledge of medical terminology, materials and processes, measuring and recording, monitoring, supervising, evaluating, interviewing, reporting, and maintaining records. Mr. Russell opined the employee was not permanently or totally disabled. He stated the employee had not seriously or diligently sought alternative employment and appeared to have withdrawn from the labor market since November 2006. Mr. Russell opined the employee would not benefit from additional vocational services because the employee stated she had no plans to return to work.
The employee filed a claim petition seeking temporary partial disability benefits, permanent total disability benefits, permanent partial disability benefits, rehabilitation services, and payment of medical expenses. Following a hearing, the compensation judge found the employee (1) sustained a 3.5% whole body disability based upon symptoms of pain and stiffness in the cervical spine, substantiated by persistent objective clinical findings; (2) sustained no permanent partial disability of the thoracic spine because, while the employee had radicular pain, she did not demonstrate persistent objective clinical findings; (3) had a depressive disorder and a pain disorder and found the work injury was a substantial contributing cause of both conditions; (4) did not qualify for a permanent partial disability rating for depression because she failed to establish any signs or symptoms of organic brain dysfunction under Minn. R. 5223.0360, subp. 7; (5) failed to prove she has reflex sympathetic dystrophy or that the condition was causally related to the work injury; and (6) failed to prove her gastrointestinal problems were causally related to her work injury. The compensation judge awarded the employee temporary partial disability benefits while the employee worked for ARIA in November and December 2006 and while she worked for Avalon from December 2007 through January 2008. The compensation judge found the employee is not permanently and totally disabled and found the employee does not meet the permanent partial disability threshold for permanent total disability benefits under Minn. Stat. § 176.101, subd. 5(2). The compensation judge further found the medical treatment for the employee’s cervical spine, thoracic spine, arms, headaches, depression, and pain disorder was reasonable, necessary and causally related to the work injury. The judge found the treatment to the employee’s low back was not related to the work injury and was not compensable, and found medical bills for diagnosis and treatment of other conditions were not compensable. The employee appeals the compensation judge’s denial of the claimed benefits.
1. Lumbar Spine
The employee contends the greater weight of the evidence supports a conclusion that the 2002 work injury included a lumbar spine condition. The employee argues she has consistently complained to her physicians about lumbar spine pain and problems since the injury. The MRI scans show degenerative disc disease in the lumbar spine associated with a disc herniation at L5-S1. Dr. Stiles, Dr. Eckstrom, and Dr. Krishnamurthy all opined the employee’s work injury was the cause of the employee’s lumbar spine problems. Accordingly, the employee asserts the compensation judge’s finding on the lumbar spine issue must be reversed. We disagree.
When the employee saw Dr. Crays immediately following her car accident, she complained only of headaches and neck pain and made no complaints of low back pain. On August 12, 2002, Dr. Stiles diagnosed a neck injury secondary to a motor vehicle accident. When she saw Dr. Niemi in October 2002, the employee complained of low back stiffness, but no other lumbar symptoms. In his December 27, 2002, report, Dr. Yellin stated the employee complained of only stiffness in her low back and denied any leg symptomatology. Dr. Yellin diagnosed a healed cervical and thoracic strain and stated there was nothing in the employee’s examination to substantiate any significant problems in the employee’s neck, mid-back, shoulder or low back. In May 2003, Dr. Yellin stated he found no significant objective clinical findings to substantiate any continuing problems for the employee. In his December 3, 2004, report, Dr. Yellin stated the employee “also has low back pain, which she states was present the last time I had seen her. She did not make mention of it to me on the previous evaluation.” (Resp. Ex. 6.) Dr. Yellin again stated the employee demonstrated no objective findings on physical examination to substantiate any problems with her cervical or lumbar regions. His report of April 6, 2007, repeated the same conclusion. The compensation judge concluded the employee did not have significant low back complaints or receive treatment for her low back for a considerable period of time after the accident. The medical evidence clearly supports this conclusion.
The employee, in her brief, asserts that Dr. Yellin did not render an opinion that the employee’s lumbar spine condition was not work related. We disagree with this characterization of his testimony. Dr. Yellin opined on several occasions the employee had no objective clinical findings to substantiate any complaints of lumbar spine problems. Based upon Dr. Yellin’s reports, the compensation judge could reasonably conclude the employee did not sustain a low back injury as a result of her motor vehicle accident. The compensation judge’s finding is, therefore, affirmed.
2. Reflex Sympathetic Dystrophy
The employee appeals the compensation judge’s finding that she failed to prove she has reflex sympathetic dystrophy caused by her personal injury. The employee points out that Dr. Stiles opined the employee has RSD in her upper extremities as a result of her work injury. The employee concedes that other than Dr. Stiles, no physician has diagnosed RSD, but asserts further evaluation by a neurologist was to occur after the hearing. Although the compensation judge found the employee did not prove she had RSD, the judge did find the treatment to the employee’s cervical spine, arms, and pain disorder was causally related to the personal injury. The employee contends these findings are not consistent. The employee describes symptoms in her arms such as mottling, change in temperature, discoloration, and radiating pain. If the employee’s arm condition were work-related, the employee argues the RSD-like symptoms must also be work-related. Accordingly, the employee argues the compensation judge’s finding is unsupported by substantial evidence. We are not persuaded.
The compensation judge noted that while Dr. Stiles did diagnosis RSD, “he did little testing and gave little explanation for how he arrived at that diagnosis. Other doctors stated she had only some signs of RSD and that the diagnosis was questionable.” (Finding 5.) This finding is supported by the evidence. On December 20, 2002, Dr. Krishnamurthy stated the employee did not then have complex regional pain syndrome/RSD. In his September 2005 neurological consultation, Dr. Xie stated he discussed with the employee the possibility of a diagnosis of RSD. The doctor stated the employee “could have a mild form of the illness. However, certainly at this point she is not typical.” (Pet. Ex. 9.) On March 7, 2007, Dr. Eckstrom noted no swelling or obvious temperature change in the employee’s left arm, that an inspection of her skin was unremarkable, and that she perhaps had some mottling in her left hand. In his November 19, 2007, report, Dr. Eckstrom stated, “I have also been asked to evaluate for RSD. This is a condition I am familiar with but do not diagnose.” (Pet. Ex. 2.) Dr. Yellin stated in his November 16, 2007, report the employee did not have reflex sympathetic dystrophy. In his August 1, 2008, chartnote, Dr. Eckstrom noted “she continues to have questionable complex regional pain symptoms.” (Pet. Ex. 1.) The foregoing all constitutes substantial evidence that supports the compensation judge’s finding that the employee does not have RSD caused by her personal injury. That finding is, therefore, affirmed.
3. Gastrointestinal Problems
The compensation judge found the employee failed to prove her gastrointestinal problems were causally related to her work injury. The employee contends her gastrointestinal problems resulted from NSAID medication which she took to treat the symptoms resulting from her personal injury. Dr. Stiles supports the employee’s claim that her gastrointestinal issues resulted from her personal injury and the employee contends there is no competing medical opinion. Accordingly, the employee contends the compensation judge’s finding that her gastrointestinal problems are unrelated to her personal injury is unsupported by substantial evidence and must be reversed.
We acknowledge that Dr. Stiles rated the employee as having permanent partial disability for gastrointestinal problems and the employee’s testimony about her gastrointestinal symptoms and her use of NSAIDs. We have, however, carefully reviewed the office notes from the Foley Medical Center and find only limited references to gastrointestinal problems and no medical opinion providing a causal link between the problems and the employee’s personal injury. Questions of medical causation fall with the province of the compensation judge. Felton v. Anton Chevrolet, 513 N.W.2d 457, 50 W.C.D 181 (Minn. 1994). Accordingly, the compensation judge was free to accept or reject the opinion of Dr. Stiles. The compensation judge found there was little medical support for the employee’s claim and concluded the employee failed to meet her burden of proving that her gastrointestinal problems were causally related to her work injury. The compensation judge’s factual finding is affirmed.
4. Permanent Partial Disability of the Thoracic Spine
The compensation judge found the employee qualified for a 0% rating under Minn. R. 5223.0380, subp. 4.A., because, while she had radicular pain, it was not substantiated by persistent objective clinical findings. The employee contends that in virtually all of the medical records that discuss objective findings in the employee’s cervical spine, they also mention objective findings in her upper back. The employee testified, and her husband confirmed, that she had swelling, muscle spasms, and tightness in her upper back. The employee asserts the compensation judge’s finding that she did not have persistent objective findings in the thoracic spine are unsupported by substantial evidence and must be reversed. We disagree.
A thoracic MRI scan on March 6, 2007, was reported by the radiologist to be normal. Dr. Yellin, in multiple reports, stated the employee had no residual pathology from her personal injury and all objective findings including EMGs, MRI scans, and physical examinations were negative. Dr. Yellin also opined on multiple occasions the employee sustained no permanent disability as a result of her personal injury. The compensation judge could reasonably rely on the opinions of Dr. Yellin. While there is testimony to the contrary, it is the function of the compensation judge to choose between conflicting expert opinion. See Nord. v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). The compensation judge’s determination is affirmed.
5. Permanent Partial Disability of the Lumbar Spine and RSD
We have affirmed the compensation judge’s finding that the employee’s personal injury was not a substantial contributing cause of any lumbar spine symptoms and the finding that the employee failed to prove she had RSD. Having affirmed these findings, the issue of permanent partial disability for these conditions is moot.
6. Permanent Partial Disability for Depression
The compensation judge found the employee does not qualify for a permanent disability rating for depression under Minn. R. 5223.0360, subp. 7, because the employee failed to establish she had symptoms of organic brain dysfunction with anatomic loss or alteration. The employee appeals this finding. Both Dr. Hogan and Dr. Stiles rated permanent partial disability for depression under subpart 7.D. of the brain dysfunction rule and the employee asserts there was no testimony to the contrary. Further, the employee contends that even absent any evidence of brain dysfunction with anatomic loss or alteration, the employee is entitled to an award of permanent partial disability benefits under Weber v. City of Inver Grove Heights, 461 N.W.2d 981, 43 W.C.D. 471 (Minn. 1990). In response, the self-insured employer contends there is no evidence that the employee had any signs or symptoms of organic brain dysfunction as required by the rule. Further, the respondents contend that under subpart 7. D. of the rule, emotional disturbances and personality changes such as depression must be supported by psychometric testing which they claim is absent in this case. The respondents argue the report of Dr. Hung supports a conclusion that the employee’s depression did not result in any functional impairment. Accordingly, the respondents contend the employee is not entitled to a permanent partial disability rating under Minn. R. 5223.0360, subp. 7.D. Further, they contend that if the employee is not entitled to a rating under the rule, a rating under Weber is inappropriate and the compensation judge’s denial of the claimed benefits should be affirmed.
Both Dr. Stiles and Dr. Hogan rated the employee’s depression under Minn. R. 5223.0360, subp. 7. D., for a brain dysfunction. To qualify for a rating under that section, signs or symptoms of organic brain dysfunction due to an injury must be present and persistent with anatomic loss or alteration or objectively measurable neurologic deficit. Minn. R. 5223.0360, subp. 7., is directly applicable only to conditions resulting from an organic brain dysfunction with anatomic loss or alteration. There is no contention in this case the employee’s psychological condition results from an organic brain dysfunction of this type. Accordingly, this schedule does not apply to the employee’s condition. See e.g., Makowsky v. St. Mary’s Medical Ctr., 62 W.C.D. 409 (W.C.C.A. 2002); Norman v. Diamond Risk Corp., No. WC04-280 (W.C.C.A. Feb 25, 2005).
The employee’s claim for permanent disability for depression was based on ratings by Drs. Hogan and Stiles under Minn. R. 5223.0360, subp.7.D. We have carefully reviewed the transcript and find no claim by the employee for permanent disability for depression based upon a Weber rating. Contained in the file, but not an exhibit in the case, is a letter from the employee’s attorney to the compensation judge which is styled as a closing argument. In this letter, the employee’s claim for permanent disability for depression is again stated to be based on Minn. R. 5223.0360, subp. 7.D. Since the employee made no claim for permanent partial disability for depression under the Weber decision at the hearing, she cannot raise it for the first time on appeal. Bradford v. Bureau of Engraving, 459 N.W.2d 697, 43 W.C.D. 279 (Minn. 1990). Neither is a remand appropriate in this case. “Basic fairness requires that the parties in a workers’ compensation proceeding be afforded reasonable notice and an opportunity to be heard before decisions concerning entitlement to benefits can be made.” Kulenkamp v. Timesavers, Inc., 420 N.W.2d 891, 894, 40 W.C.D. 869, 872 (Minn. 1988). The employee never asserted the claim for permanent disability benefits for depression under Weber so the self-insured employer was not afforded the opportunity to present a defense to the claim. A remand is, therefore, inappropriate. The employee is free to assert such a claim in the future.
7. Permanent Total Disability Benefits
The employee appeals the compensation judge’s finding that she is not permanently and totally disabled. The employee contends her condition has steadily deteriorated since her injury and she has been unable to find anything more than sporadic employment. Dr. Eckstrom opined that the employee’s injuries are permanent and she is not employable. Dr. Hogan opined the employee is unlikely to be able to obtain sustained gainful employment due to her condition, symptoms, and limitations. Shannon Prudhomme, the employee’s qualified rehabilitation consultant, opined the employee was not currently employable. The employee contends the weight of the evidence supports a conclusion that the employee is permanently and totally disabled and asserts the compensation judge erred in denying her claim.
We acknowledge there is substantial evidence of record which would support a finding that the employee is permanently and totally disabled. Based upon the testimony of the employee and her QRC together with the medical records, the compensation judge could have come to a different conclusion. The issue on appeal, however, is not whether the evidence will support a contrary result, but 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(3). Substantial evidence is 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). In performing its review function, the Workers’ Compensation Court of Appeals must “give due weight to the compensation judge’s evaluation of the credibility of the witnesses, and uphold findings based on conflicting evidence or evidence from which more than one inference might reasonably be drawn.” Turek v. Northfield Freezings, 652 N.W.2d 265, 267, 62 W.C.D. 622, 624 (Minn. 2002).
Dr. Hung stated that not withstanding the employee’s depression and focus on chronic pain, there was no evidence that her current emotional or personality functioning was impaired with respect to work activities. Dr. Hung opined that from a psychological standpoint the employee was currently capable of sustained gainful employment. Dr. Yellin opined the employee was capable of continued sustained gainful employment without restrictions. Mr. Russell opined the employee was well educated with a highly marketable degree and transferable skills from her certification as a registered nurse. Mr. Russell stated the employee was still treating and “it would be, at best, premature to suspect or project that she’s going to be permanently and totally disabled for 32 years when she’s still treating. . . so there’s a number of things that need to be reconciled before, I think, vocationally I would be comfortable saying she’s permanently and totally disabled.” (T. 195-196.) The compensation judge stated he was persuaded by the opinion of Dr. Hung that the employee is capable of working. This evidence constitutes substantial evidence supporting the compensation judge’s decision. We cannot conclude the judge’s decision was clearly erroneous or unsupported by substantial evidence. The compensation judge’s decision is affirmed.
8. Statutory Threshold for Permanent Total Disability
Minn. Stat. § 176.101, subd. 5(2), establishes levels of permanent partial disability that employees must meet in order to be determined to be permanently and totally disabled. The compensation judge found the employee failed to meet the statutory threshold. The employee appeals this finding contending the compensation judge failed to provide ratings for the employee’s depression and chronic pain disorder. We have affirmed the compensation judge’s finding that the employee is not permanently and totally disabled. Accordingly, the issue of whether she qualifies under the statutory threshold is moot and we will not deal with the issue.
9. Medical Expenses
The compensation judge found the employee’s medical expenses related to treatment for the lumbar spine, RSD, and gastrointestinal issues were not compensable. We have affirmed the judge’s findings that the employee’s personal injury was not a cause of any of these conditions. Accordingly, the compensation judge properly denied the claimed medical treatment.
 See Minn. R. 5223.0370, subp. 3.C.(1); 5223.0380, subp. 3.B.; 5223.0390, subp. 3.C.(2).
 See Minn. R. 5223.0370, subp. 3.B.
 See Minn. R. 5223.0380, subp. 4.A.