CRAIG S. REEVES, Employee/Appellant, v. SOUTHSIDE DISTRIBS., INC., and CRAWFORD & CO., Employer/Insurer, and SUBURBAN RADIOLOGIC, and FAIRVIEW HEALTH SERV=S., Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

NOVEMBER 5, 2002

 

HEADNOTES

 

CAUSATION - SUBSTANTIAL EVIDENCE; EVIDENCE - EXPERT MEDICAL OPINION.  Substantial evidence supports the finding of the compensation judge that the employee did not sustain a brain injury or psychological condition as the result of the work injury where there were medical opinions with adequate foundation which attributed those conditions to non-work related factors.

 

Affirmed.

 

Determined by Stofferahn, J., Johnson, C.J., Pederson, J.

Compensation Judge: Carol A. Eckersen.

 

OPINION

 

DAVID A. STOFFERAHN, Judge

 

The employee appeals from the decision of the compensation judge as to the nature and extent of his work injury, from the compensation judge=s finding that he did not sustain a consequential injury, and from the compensation judge=s denial of temporary total disability and permanent partial disability benefits.  We affirm.  The employee has filed a Petition to Vacate a settlement in which the award was served and filed April 29, 1999.  The petition is denied.

 

BACKGROUND

 

On December 29, 1994, Craig Reeves, the employee, was employed by Southside Distributors, the employer, as a sales manager.  The employee, who was then 43 years old, had worked for the employer since December 1983.  The employer was a wholesale distributor of beverages, primarily Anheuser Busch products.  On December 29, the employee was showing a neon sign to another employee who would be taking the sign to one of the employer=s customers.  Mr. Reeves plugged in the sign and when it didn=t work, he tapped on the sign and received an electrical shock.  The employee described being Ajolted@ back into a wall and thereafter was dazed for the rest of the day. 

 

The employee did not seek medical care for this incident until January 11, 1995, when  he consulted with Dr. John Jacoby at Health Works.  The employee complained of fatigue, loss of memory, and double vision.  Dr. Jacoby indicated that he was not aware of a relationship between electric shock and the employee=s symptoms and referred him to Dr. Rafael Magana at Minneapolis Clinic of Neurology.  The employee, who had continued in his regular job, was not given any work restrictions. 

 

The employee first saw Dr. Magana on January 23, 1995.  The employee had a normal neurological exam.  Dr. Magana=s impression was of traumatic brain injury and post concussion syndrome.  He sent the employee for an EEG on February 8, 1995, which was read as being mildly abnormal but technically poor.  The employee was also sent to Dr. Steven Morgan for a neuropsychological evaluation.  In Dr. Morgan=s report of March 13, 1995, he noted that the employee had some improvement since seeing Dr. Magana but that he was not yet back to baseline and continued to complain of memory problems, headaches, and loss of patience.  The testing results showed Amild residual cognitive impairment@.  Dr. Magana anticipated continued improvement in the employee=s condition.  The employee saw Dr. Magana twice more in 1995, and was given prozac for his symptoms, which according to Dr. Magana=s records, included depression. 

 

In August 1995, the employee also began seeing Dr. Eric Goad, identified in the record as a psychiatrist.  Dr. Goad referenced the electric shock injury in his notes briefly but identified job stress and marital discord in his treatment of the employee.  Dr. Goad also referred to the employee=s alcohol use in his records.  The employee admitted in his testimony at hearing that his drivers license was suspended in 1995 or early 1996 because he refused to take a breath test.  The employee was also placed on probation at work in 1996 and suspended for a month for drinking on the job.  When Dr. Goad saw the employee in April 1996 he noted that the employee had no real complaints. 

 

The employee continued to work for the employer during this time and was promoted from sales manager to operations manager.  In July 1997 the truck drivers at the employer went out on strike and the employee had extra work in arranging to cover their absence.  On July 8 or 9, 1997 the employee had what he described as a panic attack.  The record refers to treatment which the employee may have received but no treatment records are in evidence.  In any event, the employee was off work about two weeks and when he tried to return to work he was terminated.  The employee has not worked since that time. 

 

In October 1997, the employee returned to Dr. Goad and for the first time the records referred to anxiety symptoms including night sweats.  Dr. Goad thought the symptoms might be due to the prozac but nevertheless increased the employee=s dosage.  There is no record of any other treatment of the employee until August 1998 when he returned to Dr. Magana.  Dr. Magana=s impression was that of persistent brain injury secondary to an electrical injury.  The employee was scheduled for follow up psychometric testing and was given samples of an anti-depressant.  Dr. Magana indicated that further treatment would be determined after the testing period.  The employee did not see Dr. Magana again. 

 

The employee was seen for an independent examination by Dr. John Rauenhorst, a psychiatrist on December 8, 1998.  He generated a report and testified by deposition in March 1999.  Dr. Rauenhorst concluded that the employee had a depressive disorder but opined that the disorder was not due to the employee=s work injury.  He based that opinion in significant part on the lack of evidence of a severe electric shock, i.e. no burns, and on the presence of other risk factors in the employee=s case such as the loss of his job, marital problems leading to a divorce, and the employee=s alcohol use.  Dr. Rauenhorst also rejected the diagnosis of post traumatic stress disorder or of post concussion syndrome.  The employee was also seen twice by Dr. Steven Lebow, a neurologist, at the request of the employer and insurer.  Dr. Lebow found no neurological deficit. 

 

Dr. Magana testified by deposition, also in March 1999.  He expressed his opinion that the employee suffered from depression, post concussion syndrome, and post traumatic stress disorder as the result of the electric shock injury in December 1994.  Dr. Magana further stated that as of the time of the deposition the employee was not able to work and needed an assessment by a brain injury clinic. 

 

The parties entered into a settlement which was the subject of an award on settlement issued April 29, 1999.  The parties agreed the employee had sustained an electrical shock injury on December 29, 1994, but disputed whether the employee had sustained an organic brain injury at that time.  The parties settled all claims on a to date basis, closed out all claims for temporary total on a full final and complete basis, and reserved all defenses for the employer. 

 

The employee testified that after midnight on or about May 10, 1999, he had a panic attack and woke up.  He got up and went downstairs to his kitchen to get a glass of juice.  As he was getting a glass out of the cupboard, he blacked out and when he came to, he was lying on the floor and his left ankle was dislocated.  The employee did not seek medical care for more than a week, testifying that he thought his ankle would improve.  After going to his primary care clinic he was referred to Dr. Richard Strand, who diagnosed a fibula fracture with dislocation of the left ankle.  Open reduction surgery was performed.  The employee returned to Minneapolis Clinic of Neurology in June 1999, where he saw Dr. Felix Zweibel.  He complained of panic attacks and memory difficulties.  The employee was on Celexa, an anti-depressant.  Dr. Zweibel provided no care other than to recommend a return to Dr. Goad to see if treatment was appropriate for the anxiety and panic attacks. 

 

The employee filed a claim petition in March 2001 alleging that the fractured ankle was the result of the brain injury he claimed to be a result of his December 29, 1994 work injury.  An amended claim petition alleged temporary total disability from May 10, 1999 to the present and continuing and permanent partial disability of 65 percent of the whole body pursuant to Minn. R. 5223.0060, subp. 8d(3).

 

On October 11, 2001, the employee was seen at the request of the employer by Dr. Gary J. Krupp, a Ph.D. and licensed psychologist.  Dr. Krupp performed a number of tests, met with the employee and reviewed the medical records.  His opinion was that the employee was very depressed and had secondary anxiety.  He did not believe the electric shock injury was the cause of the condition, pointing instead to the employee=s family history, his alcohol use, his marital difficulties as causative factors and also noting that the employee was able to work for almost two and one half years as a manager for the employer after the December 29, 1994 incident. 

 

This case was heard by a compensation judge on January 2, 2002.  Issues identified by the judge for determination were:

 

1.  the nature and extent of the employee=s December 29, 1994 injury and specifically whether the employee had sustained a brain injury at that time.

 

2.  whether the employee=s left ankle fracture was a consequential injury.

 

3.   the employee=s claim for temporary total disability from May 10, 1999 and continuing and whether that claim would be barred by the 1999 settlement.

 

4.   the extent, if any, of permanent partial disability due to the 1994 injury.

 

In her Findings and Order, served and filed March 4, 2002, the compensation judge found that the employee=s work injury of December 29, 1994 was a temporary electric shock injury and the employee did not sustain a brain injury, cognitive impairment, post concussive disorder, post traumatic stress disorder, depression or anxiety as a result of his injury.  The compensation judge found the employee=s ankle fracture was not a consequential injury.  The compensation judge denied the employee=s claim for temporary total disability and permanent partial disability.

 

The employee has also filed a petition to vacate the 1999 stipulation for settlement on the basis that there has been an unanticipated substantial change in the employee=s medical condition.  The reference to change in condition is the employee=s ankle fracture on May 10, 1999.

 

DECISION

 

The employee has appealed the findings by the compensation judge that his injury of December 29, 1994 was a temporary electric shock and that he did not sustain any type of brain injury or psychological condition as the result of the injury.  The employee argues that the findings are not supported by substantial evidence and must be reversed.  We are not persuaded.

 

The employee argues that the compensation judge should not have relied on the opinions of the doctors who evaluated the employee on behalf of the employer and insurer, Doctors Krupp, Lebow, and Rauenhorst, in that those opinions are speculative and lack foundation.  Foundation is an admissibility question and if a medical opinion is based on personal knowledge of the case, testimony heard during trial, or facts in evidence presented in a hypothetical question, foundation is met.  Scott v. Southview Chevrolet Co., 267 N.W.2d 185, 188, 30 W.C.D. 426, 430 (Minn. 1978); Grunst v. Immanuel-St. Joseph Hosp., 424 N.W.2d 66, 68, 40 W.C.D. 1130, 1132 (Minn. 1988).

 

The employee has not identified any evidence ignored by the evaluating doctors which would raise a foundation question.  A review of the record indicates that the evaluating doctors had access to the employee=s medical records and performed an examination of the employee.  In his deposition, Dr. Rauenhorst was also provided with a hypothetical by the attorney for the employer and insurer.  We conclude that adequate foundation existed for the admission of the opinions.

 

Essentially, the employee is arguing not the foundation of the medical opinions but rather the weight given to those opinions by the compensation judge.  The employee contends that more weight should have been given to the opinion of Dr. Magana than the opinions of the evaluating doctors.  However, Auntil the time comes when medical knowledge has progressed to such a point that experts in the field of medicine can agree, causal relation in determining compensable injury or disease will have to remain in the province of the trier of fact@.  Golob v. Buckingham Hotel, 244 Minn. 301, 304, 69 N.W.2d 636, 639, 18 W.C.D. 275, 278 (1955).  It is the role of the compensation judge to choose between conflicting medical opinion.  Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (1985).

 

We cannot conclude here that reasonable minds would not accept the findings of the compensation judge.  Contrary to the arguments of the employee, the evaluating doctors did not dispute that the employee had depression or abnormal neuropsychological testing.  The dispute in this case is with regard to the cause of those conditions and the evaluating doctors concluded that the work injury of December 29, 1994 was not a substantial contributing factor.  Substantial evidence supports the determination of the compensation judge that the employee=s injury was a temporary electric shock injury. 

 

The employee has also appealed the denial of temporary total disability and permanent partial disability and the finding that the ankle fracture of May 10, 1999, was not a consequential injury.  The employee claimed that the ankle fracture was due to passing out in the kitchen which was due to a panic attack which was due to anxiety disorder and/or post traumatic stress disorder which was due to the work injury.  The claim for temporary total disability was based upon the employee=s alleged inability to work due to the ankle fracture and/or psychological conditions.  The permanent partial disability claim was based upon the alleged brain injury.  Our affirmance of the compensation judge=s determination as to the nature and extent of the work injury disposes of these issues as well and they will not be considered further. 

 

The petition to vacate filed by the employee alleges that the ankle fracture sustained by the employee on May 10, 1999 was an unanticipated substantial change in medical condition sufficient to vacate the settlement under Minn. Stat. ' 176.461.  Since we have affirmed the compensation judge=s finding that the ankle fracture was not a consequential injury, we find no basis for vacating the settlement. 

 

The decision of the compensation judge is affirmed.  The petition to vacate is denied.