ROBERT A. LICHTENBERG II, Employee/Appellant, v. ALLIED SYS., LTD., and KEMPER INS. CO., Employer-Insurer, and MN DEP=T OF ECONOMIC SEC., MAPLEWOOD-WHITE BEAR CHIROPRACTIC, MIDWEST RADIOLOGY, and BLUE CROSS/BLUE SHIELD OF MINN./BLUE PLUS, Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

FEBRUARY 14, 2003

 

HEADNOTES

 

ARISING OUT OF & IN THE COURSE OF - ASSAULT.  Where the employee was injured as a result of response by a co-worker to being poked in the ribs by the employee during work hours and on work premises, and where the judge expressly concluded that the assailant did not intend to injure the employee for personal reasons, the compensation judge erred in concluding that the employee was precluded from obtaining benefits by virtue of the personal assault exception to entitlement to compensation for personal injuries arising out of and in the course of employment.

 

EVIDENCE - EXPERT MEDICAL OPINION; EVIDENCE - CREDIBILITY; REMAND; MENTAL INJURY.  Where there was adequate foundation and support in the record for the medical opinions upon which the judge relied, and where the compensation judge expressly questioned the credibility of the employee=s job search logs, the compensation judge=s conclusion that the employee was not entitled to disability benefits was not clearly erroneous and unsupported by substantial evidence, but remand was necessary for the judge=s determination of the employee=s entitlement to payment of certain medical expenses, apparently including expenses of consequential psychological treatment, pursuant to the adopted medical opinions.

 

Affirmed in part, reversed in part and remanded.

 

Determined by Pederson, J., Wilson, J., Stofferahn, J.

Compensation Judge:  Rolf G. Hagen.

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

The employee appeals from the compensation judge=s denial of benefits based on application of the personal assault exception contained in Minn. Stat. ' 176.011, subd. 16.  We reverse the judge=s application of the personal assault exception, affirm the judge=s findings as to the nature and extent of disability, and remand for additional findings regarding the employer and insurer=s liability for medical treatment expenses.

 

BACKGROUND

 

In September of 1999, Robert Lichtenberg, II [the employee], began employment as a yard worker with Allied Systems, Ltd. [the employer].  The employee=s job consisted of driving new Ford vehicles from a bullpen storage lot to a parking lot for loading onto transport trucks.  He and other drivers were then transported back to the bullpen by a van that would normally seat about ten people.  Approximately half of each shift was spent in the van and the other half driving and parking the vehicles.

 

One of the employee=s co-workers was Gary Hoopman.  The employee and Mr. Hoopman had met at work in 1999 and had become friends, socializing together on occasion outside of work.  Mr. Hoopman has been employed by the employer since 1989, also as a yard worker.  Over the years, Mr. Hoopman has made it known to his co-workers that he is particularly sensitive about being touched on his side or rib cage area.  If touched or poked in the rib area, Mr. Hoopman would typically jump and take a swing at the person who had touched or poked him.^[1]

 

On two separate occasions on the morning of July 11, 2000, while entering the back of the employer=s transport van, the employee poked his finger into Mr. Hoopman=s side.  Mr. Hoopman responded on both occasions by striking the employee with a closed fist on the right side of his head, just above his right ear.  The employee was able to complete his shift that day, and that same evening, after work, he joined several co-workers, including Mr. Hoopman, for dinner and drinks.  On the date of these events, the employee was forty-two years old and was earning a weekly wage of $1,084.97.

 

The employee returned to work on July 12, 2000, and worked his full shift.  That evening, he sought medical treatment at Regina Medical Group.  He was seen by a nurse practitioner, who noted on examination that there were no marks or bruising into the hairline above the right ear or on the right temple.  The practitioner did note, however, some soft tissue swelling about the size of a quarter just above the right ear.  She recommended that the employee use ice and take Tylenol or ibuprofen for any headaches.  On July 19, 2000, the employee returned to Regina Medical Group, where he was seen this time by Dr. Richard Andrews.  Dr. Andrews noted the employee continued to have pain above and below the right ear.  He diagnosed a concussion and a contusion of the right side of the skull and ordered a CT scan to rule out a fracture in the temporal region.  The CT scan was completed on August 4, 2000, and was read to be normal.

 

On August 7, 2000, the employee was seen by Dr. Peter Badroos at the River Valley Clinic in Cottage Grove.  Dr. Badroos recorded that the employee denied any loss of consciousness after being hit on July 11, 2000, but claimed to have felt dizzy and disoriented for some time.  As of August 7, 2000, the employee was demonstrating no residual symptoms of drowsiness or confusion, nor any associated blurred or double vision, and Dr. Badroos concluded the employee should be able to work without any limitations or restrictions.  He anticipated that the employee would reach maximum medical improvement [MMI] within a few weeks, if his neurology consultation showed no significant pathology.

 

The employee continued to complain to Dr. Andrews of ear pain, sensitivity to noise, and some problems with nausea and dizziness.  On August 21, 2000, the employee underwent an MRI examination of the brain.  The MRI was interpreted as normal.  On August 30, 2000, the employee was seen by neurologist Dr. Charles Ormiston, who agreed with Dr. Andrews= diagnosis of post-concussive syndrome and started the employee on Amitriptyline.  Dr. Ormiston also obtained a history of Aa bit of a whiplash injury@ that the employee had apparently sustained at work the previous fall, which had resulted in some intermittent pain at the base of the neck ever since then, which seemed to be aggravated by the July 11, 2000, incident.  The employee returned to see Dr. Andrews on September 6, 2000.  On that date, Dr. Andrews noted that range of motion in the employee=s neck appeared normal, and he ordered a cervical MRI scan.  The scan, which was performed on October 10, 2000, was read to reveal mild disc dehydration and degenerative change at C5-6 but no other abnormalities.

 

On January 9, 2001, the employee was examined at the request of the employer and insurer by neurologist Dr. Bruce Van Dyne.  Dr. Van Dyne obtained a history from the employee, reviewed the employee=s medical records, reviewed a summary of the employee=s deposition, and performed a physical examination.  He concluded that the employee was completely normal neurologically and that the only injury sustained by the employee on July 11, 2000, was a minor and temporary closed-head injury.  Dr. Van Dyne stated that there were no objective abnormal findings on the employee=s diagnostic scans or on his clinical examination that would substantiate the employee=s reported multiple residual Apost-concussive@ symptoms.  He also concluded that there were no objective abnormal findings on examination of the employee=s cervical spine that would substantiate any residual cervical strain resulting from the July 11, 2000, work incident.  Nor did he believe that there was support in the contemporaneous medical records for such an injury or for an injury to the employee=s brain on that date.  Dr. Van Dyne concluded that the employee was at MMI at the time of his examination, with a zero percent permanent partial disability and without need for any additional medical care with respect to his alleged injury.  Lastly, he concluded that the employee was neither temporarily totally disabled nor temporarily partially disabled from July 11, 2000, to the date of his examination.  Dr. Van Dyne placed no restrictions on the employee=s ability to engage in full-time employment or on his activities of daily living.

 

The employee continued to treat periodically with Dr. Ormiston, who, in February 2001, referred the employee to HealthEast Optimum Rehabilitation for physical therapy.  At some point in the course of that therapy, the employee received electrical muscle stimulation.  Although the response is not reflected in the physical therapy records, the employee subsequently testified that, rather than decreasing his symptoms, the electrical stimulation jolted him, causing all the muscles in his back to contract, to the point where he could not get out of bed the next day.  On February 21, 2001, the employee commenced about two months of treatment with chiropractor Dr. John Benassi.  On February 28, 2001, Dr. Ormiston performed an EEG, which he interpreted to be mildly abnormal.  The physical therapy discharge summary, dated March 19, 2001, indicated that, after six visits, the employee had made minimal to no progress, the employee having reported a decrease in lower cervical pain but an increase in upper cervical pain and an increase in headaches.  The employee had six more visits authorized when he discontinued scheduling therapy sessions.  He ultimately claimed a consequential injury to his mid and low back as a result of his physical therapy.

 

On March 24, 2001, the employee was seen for a neuropsychological evaluation by psychologist Dr. Robert Karol.  Dr. Karol reported that the employee was complaining of somatic problems such as diarrhea, neck and head pain, blurry vision, burning in his right eye, ringing and snapping sounds in his ear, and noise sensitivity, in addition to more clearly mental problems, such as difficulties with memory and spelling.  Psychometric testing revealed significant problems with adjustment and coping, and Dr. Karol diagnosed an unspecified cognitive disorder and an adjustment disorder.

 

On May 16, 2001, Dr. Ormiston referred the employee for a functional capacities evaluation [FCE], which was completed at HealthSouth on May 22, 2001.  The results of the evaluation indicated that the employee was able to perform heavy work up to eight hours a day.  It was noted that the employee appeared to be excessively focused on his symptoms Adespite a relatively normal profile.@  The therapist concluded that, based on the employee=s objective musculoskeletal examination, the employee should be able to return to work eight hours per day.  He also reported that, A[f]rom a cognitive standpoint, I did not see anything that would pose a risk factor to him performing either his cabinet-making job or his yardman position.@

 

The employee returned to see Dr. Ormiston on June 13, 2001, following the FCE.  In his office notes, Dr. Ormiston reported that his

 

recommendation to Robert is that we make every effort to eliminate as much restriction as we can to get him back to work.  He has, to my mind, clear evidence in his symptomatology that he has had a traumatic brain injury.  He does not have MRI abnormalities or any electrophysiological abnormalities to suggest there is an appropriate intervention.  There also is no evidence to suggest that there has been any malingering on his part. 

 

On that same date, Dr. Ormiston reported to the employee=s attorney that the employee=s only work restrictions were that he work only daytime hours and no overtime.  He agreed with Dr. Karol=s diagnosis of a cognitive disorder and attributed the employee=s loss of work to the injury in July 2000.

 

On September 13, 2001, the employee was seen for a neuropsychological evaluation by psychologist Dr. Deborah Roman at the request of the employer and insurer.  Dr. Roman concluded that it was very unlikely that the employee had sustained a concussion or any other type of brain injury as a result of the incident at work.  Nor did she believe that he had any cognitive problems as a result of the incident.  She did, however, characterize the employee=s condition as a somatization disorder and an adjustment disorder with mixed anxiety and depressed mood causally related to the incident of July 11, 2000.  She concluded that the employee was emotionally traumatized and was afraid to return to work.  In the weeks that followed the incident, she stated, Ahe became progressively more symptomatic, developing a host of physical and cognitive problems that effectively prevented him from returning to a work environment that he considered hostile.@  Dr. Roman did not believe that the employee had reached MMI from his psychiatric problems, and she indicated that continuing mental health services from a qualified therapist and psychiatrist would be appropriate to address the employee=s anxiety and emotional decompensation.

 

The employer and insurer arranged for a second examination by Dr. Van Dyne on September 18, 2001.  Dr. Van Dyne reviewed medical records generated following his earlier exam and again obtained a history from the employee and conducted an examination.  He reiterated his impression that the only injury sustained on July 11, 2000, was a minor closed-head injury that may have resulted in a mild physiologic cerebral concussion.  He again concluded that the employee did not sustain a neck injury attributable to the incident of July 11, 2000, nor did he find any mid back or lower back injuries directly attributable to that incident or indirectly related to any treatment provided during the course of therapy.  Dr. Van Dyne stated that the employee does not have any significant objective abnormal findings on examination that would indicate that he has any physical or cognitive disability that would prevent him from full employment.  He again opined that the employee had reached MMI with respect to each of his alleged injuries, and he found no ratable permanent partial disability.

 

On November 12, 2001, Dr. Ormiston reported to the employee=s attorney as follows:

 

Regarding permanency, the rating of emotional disturbance which would be under 5223.0360, Subpart [7]D, would be rated by psychology and I would assess that he may well fit under (1) for a 10% rating.  Regarding his ongoing mild difficulty with cognitive function, he would fit best under 5223.0360, Subpart [7]C.(1).^[[2]]  I believe that the patient is now at maximum medical improvement.

 

On November 27, 2001, Dr. Van Dyne testified by deposition, essentially reiterating the opinions that he had rendered in earlier reports.  The employee=s claims for workers= compensation benefits came on for hearing before a compensation judge the following day, November 28, 2001.  The employee claimed that he had sustained a cognitive brain injury and injury to his cervical spine as a result of the assaults on July 11, 2000.  He also claimed consequential psychological injuries and consequential injuries to his thoracic and lumbar spine.  The employee contended that he was entitled to a brief period of temporary partial disability compensation intermittently through August 14, 2000, and to temporary total disability benefits continuing from then through the date of trial.  He also claimed entitlement to compensation for permanent partial disability as rated by Dr. Ormiston, to payment of medical expenses, and to a rehabilitation consultation.

 

In a Findings and Order issued March 15, 2002, the compensation judge concluded that the assaults perpetrated upon the employee on July 11, 2000, were personal to the employee and therefore noncompensable under the personal assault exception found in Minn. Stat. ' 176.011, subd. 16.  On that basis, the judge denied the employee=s claims in their entirety.

 

Despite his denial based on the personal assault exception, the compensation judge also issued specific findings regarding the extent of the employee=s disability and his entitlement to benefits but for that exception.  At Finding 5, the judge adopted Aas his own, as Findings of Fact,@ the expert medical opinions of Dr. Van Dyne regarding Athe nature and extent of the physical injuries sustained by the employee on July 11, 2000, maximum medical improvement, reasonableness and necessity of medical treatment provided, and permanent partial disability.@  The judge went on in that same finding to state

 

more specifically: that as a result of the assaults of July 11, 2000, employee sustained personal injury to his head and being in the nature of a minor closed head injury, temporary in nature, which did completely resolve no later than January 9, 2001, (date of first examination with Dr. Van Dyne) without residual and without permanency attributable to same; that employee did not sustain consequential injury to his low back and thoracic spine; that the medical treatment provided to employee from July 11, 2000, to January 9, 2001, was reasonable and necessary but that medical care and treatment provided thereafter was not.

 

At Finding 6, the judge similarly adopted Aas his own, as Findings of Fact,@ the psychological opinions of Dr. Roman regarding Awhether employee sustained a consequent mental injury as a result of the July 11, 2000, assaults, the nature and extent of the mental injury, maximum medical improvement, and reasonableness and necessity of psychological/psychiatric care/treatment.@  The judge then went on in that same finding to state

 

more specifically: that as a result of the July 11, 2000, assaults, the employee was emotionally traumatized and was afraid to return to work . . .; that the employee has developed resultant anxiety and emotional decomposition . . .; that employee has not reached maximum medical improvement from the effects of the mental injury; that employee is in need of continued mental health services to address anxiety and emotional decomposition.

 

At Finding 13, the judge concluded also that, but for his denial under the personal assault exception, the employee would be entitled to a rehabilitation consultation.

In the memorandum accompanying his Findings and Order, the compensation judge explained that, even if the personal assault exception were inapplicable, the employee has not established entitlement to the wage replacement benefits at issue.  Although he accepted Dr. Roman=s opinions regarding the employee=s psychological diagnoses, the judge concluded that

 

the medical/psychological records are devoid of any medical/psychological opinion indicating that the employee=s mental injury is a substantial contributing factor in the employee=s over all disability.  The employee needs treatment for his mental injury, but said injury alone (or in combination with the physical injury) does not preclude the employee from sustained gainful employment.

 

The employee appeals.

 

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.

 

A[A] decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which [the Workers= Compensation Court of Appeals] may consider de novo.@  Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993).

 

DECISION

 

1.  Arising Out Of and In the Course of Employment

 

Minn. Stat. ' 176.011, subd. 16, defines Apersonal injury@ as an

 

injury arising out of and in the course of employment . . . . but shall not include an injury caused by the act of a third person or fellow employee intended to injure the employee because of personal reasons, and not directed against the employee as an employee, or because of the employment.

 

In reviewing the compensation judge=s memorandum accompanying his Findings and Order, it is clear that the judge believed that the employee=s injuries arose out of and in the course of his employment.  The judge stated there in part as follows:

 

on the morning of July 11, 2000, the employee did, on two occasions, enter the company van of the employer for the purpose of being transported to a storage site, and was assaulted on two occasions by a co-employee/assailant.  Part of the employee=s job was to be transported by the van which was provided by the employer and as such the van becomes a part of the business premises. 

 

There is no question in this Compensation Judge=s mind that the injury did arise out of the employment situation; more specifically:  employee (as well as other employees) were regularly transported from one location to another in the company van and the incident and injury occurred when a co-employee/assailant assaulted the employee in the company van.  At that time, clearly employee was in the employ of the employer performing a required duty (transport) when he was assaulted.

 

Having reviewed the evidence, this Compensation Judge believes that all of the testimony presented at hearing support the conclusion that the employee sustained an injury as a result of the assaults perpetrated upon him and that said injury did arise out of and in the course of his employment for the employer.

 

Despite these conclusions, however, the judge determined that, by touching Mr. Hoopman contrary to his known wishes, the employee intentionally committed an act upon his assailant that resulted in the assault upon the employee.  These activities, the judge determined, had no relationship whatsoever with the employment.  He therefore denied the employee=s claims under the personal assault exception of Minn. Stat. ' 176.011, subd. 16.  On appeal, the employee contends that the compensation judge committed an error of law when he applied the assault exception to the facts of this case.  We agree.

 

In a decision interpreting the personal assault exception, the supreme court stated as follows:

 

That the injury is intentionally inflicted does not ipso facto preclude compensation.  Compensation cases arising from assault fall mostly into three groups.  Noncompensable are cases where the assailant was motivated by personal animosity toward his victim, arising from circumstances wholly unconnected with the employment.

 

In contrast and compensable are injuries resulting from assault where provocation or motivation arises solely out of the activity of the victim as an employe[e].

 

In a middle ground are cases . . . where the assault was directed against the victim, neither Aas an employe[e]@ nor for Areasons personal to him.@  Injuries so arising are ordinarily compensable.

 

A noncompensable assault must have been for Areasons personal@ to the victim.  Also, it must not have been Adirected against him as an employee or because of his employment.@

 

Hanson v. Robitshek-Schneider Co., 209 Minn. 596, 599-600, 297 N.W. 19, 21-22, 11 W.C.D. 463, 466-67 (1941) (citations omitted).  Subsequent cases have stated that the Afundamental question@ is whether the employee was injured Anot merely while he was at his employment, but because he was at his employment, in touch with associations and conditions inseparable from it.@  Dufloth v. City of Monticello, 308 Minn. 451, 241 N.W.2d 645, 646, 38 W.C.D. 379 (1976); Petro v. Martin Baking Co., 239 Minn. 307, 311, 58 N.W.2d 731, 734, 17 W.C.D. 310, 314 (1953).

 

In his memorandum, the judge expressed his conclusion that the acts of the assailant were more of a reflex response than anything else and that there was no motivation or intent on the part of the assailant to hurt the employee.  He also stated that A[c]learly, there was no particular animosity as and between the employee and the assailant prior to the assaults on July 11, 2000.@  From our review of the record, there is nothing to suggest that it was the personal relationship between Hoopman and the employee that gave rise to the assault.  Nor is there evidence in the record to suggest that the assault was Awholly unconnected with the employment.@  Applying the HansonAthree group@ method of analysis, it is evident that the assaults in this case belong in the Amiddle ground@ of cases.  The assaults were directed against the employee neither Aas an employee@ nor for Areasons personal to him.@  According to Hanson, injuries in this middle ground are ordinarily compensable.  Application of the Afundamental question@ analysis yields the same result.  The employee was at the workplace during working hours when the assaults occurred.  The assault was not personal, and the employee was in touch with associations and conditions inseparable from his employment.

 

Given the judge=s conclusion that Mr. Hoopman did not intend to injure the employee for personal reasons, and because the assaults clearly occurred Ain the course of@ employment, we conclude that the personal assault exception does not apply to this case.  Accordingly, that determination of the compensation judge is reversed.

 

2.  Nature/Extent of Injuries

 

It is clear from his decision that the compensation judge decided this case primarily on grounds of the personal assault exception.  However, in Findings 5 and 6, supported by his very detailed Memorandum, the judge determined that the only physical injury sustained by the employee on July 11, 2000, was a minor injury to the head that shortly thereafter resolved.  The judge accepted the opinions of Dr. Van Dyne that this injury did not result in any permanent partial disability or limitations on employment.

 

As to the consequential mental injury, the judge accepted the opinions of Dr. Roman that, while the employee developed an adjustment disorder and needed treatment with a therapist, the employee=s psychiatric diagnoses did not disable the employee from work.  The judge further concluded that the employee did not establish that he made a diligent search for work during the period of claimed disability.

 

Given the adequate foundation for the doctors= opinions, the record contains more than adequate support for the judge=s acceptance of the expert opinions of Drs. Van Dyne and Roman and for the judge=s denials of wage replacement claims of the employee based on those opinions and on the employee=s failure to conduct a diligent job search.^[3]  See Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985) (a trier of fact's choice between experts whose testimony conflicts is usually upheld unless the facts assumed by the expert in rendering his opinion are not supported by the evidence); Redgate v. Sroga's Standard Serv., 421 N.W.2d 729, 733, 40 W.C.D. 948, 954 (Minn. 1988) (employees capable of working must make a diligent job search to establish entitlement to wage replacement, even if MMI has not yet been reached).  On that basis, and finding support also for the judge=s reliance on Dr. Van Dyne=s opinion that the employee sustained no permanent partial disability as a consequence of his work injury, we affirm the judge=s denial of all of the disability benefits at issue.  See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.

 

Notwithstanding our affirmance of the judge=s denial of all other benefits at issue, ambiguities remain for us as to exactly which medical expenses are compensable pursuant to the judge=s reliance on the opinions of Drs. Van Dyne and Roman.  Dr. Van Dyne testified that medical care and treatment prior to his examination of the employee on January 9, 2001, was reasonable and necessary but that further treatment after that date was not necessary.  Given Dr. Van Dyne=s opinion that the employee=s sole injury was a minor and temporary closed-head injury, the covered expenses need to be determined by the judge.  Dr. Van Dyne apparently thought that the prior treatment was work injury-related because the employee had presented to his treating physicians an evolving and somewhat complex problem that had led them to obtain a number of diagnostic tests to make certain that he was not subject to some underlying condition.  Similarly, the judge accepted Dr. Roman=s opinion that the employee continues to suffer from work-related psychological consequences of his July 11, 2000, work injury.  We therefore remand the matter to the compensation judge for further consideration and additional findings as to which medical expenses are compensable, consistent with the medical opinions relied upon by the judge.  Further, in light of our reversal of the judge=s legal conclusion that the employee=s injury did not arise out of and in the course of his employment by application of the assault exception, we reverse the judge=s denial of a rehabilitation consultation on that basis.