ROBERT RAY BURKS, Employee/Appellant, v. VOLUME SERVS. AM., INC.,/CENTERPLATE and AMERICAN INT'L/AIG CLAIM SERVS., Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

SEPTEMBER 15, 2005

 

No. WC05-115

 

HEADNOTES

 

CAUSATION - MEDICAL TREATMENT; EVIDENCE - CREDIBILITY.  Where the compensation judge denied the employee=s claim primarily on grounds that it was supported almost exclusively by the employee=s own testimony of persistent symptoms since the date of the injury, where the judge found that testimony unpersuasive, where the substance of that same testimony was critical to the expert medical opinion upon which the employee=s claim relied, and where the judge found that opinion less compelling than the contrary opinion of the independent medical expert, the compensation judge=s denial of payment of the medical expenses at issue was not clearly erroneous and unsupported by substantial evidence.

 

Affirmed.

 

Determined by: Pederson, J., Johnson, C.J., and Rykken, J.

Compensation Judge: Peggy A. Brenden

 

Attorneys: Robert Burks, pro se Appellant.  William M. Topka, Erstad & Riemer, Minneapolis, MN, for the Respondents.

 

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

The employee appeals pro se from the compensation judge's conclusion that the employee=s work injury was not the cause of his neurological symptoms.  We affirm.

 

BACKGROUND

 

On June 13, 2003, Robert Burks, who is legally blind as a result of glaucoma, was injured when he was hit in the face by a closing overhead door in the course of his work distributing concessions at the Metrodome for Volume Services America, Inc./Centerplate [the employer].  Mr. Burks [the employee], who was thirty-seven years old on the date of his injury, was knocked to the floor by the blow of the closing door, where he remained conscious but began to bleed heavily from lacerations to his forehead and nose.  He was taken immediately to the first aid room at the Metrodome, where he was reported to have three lacerations on the bridge of his nose, one U-shaped and two apparently smaller ones just above it.  From the Metrodome the employee was driven by his supervisor to Hennepin County Medical Center [HCMC], where the attending physician diagnosed lacerations to the nose and forehead, noting that the employee=s neck was supple and that there was no crepitus or major swelling to his injured nose.  The doctor administered between eight and twelve stitches^[1] to close the wounds to the employee=s nose and forehead, prescribed acetaminophen with codeine, and advised the employee to follow up at the HCMC wound care clinic in five days.

 

On June 14, 2003, the day after his work injury, the employee sought treatment at United Hospital for symptoms of mild headache pain, nausea, tingling, and dizziness.  A CT scan of the employee=s brain was conducted, which was negative except for some abnormalities related to his sinuses, and the attending physician diagnosed headache with sinusitis.  On June 18, 2003, the employee returned to HCMC to have his stitches removed, where records report no further complaints of or treatment for headaches or dizziness and no pain upon discharge.  The employee subsequently returned to his job at the Metrodome and did not for over a year thereafter miss any time from work consequent to his work injury.

 

On March 1, 2004, over eight months after his work injury, the employee was examined by neurologist Dr. Steven Lebow at the Noran Neurological Clinic, to whom the employee reported that he had gone to St. Joseph=s Hospital with complaints of headaches about two weeks after being treated at HCMC for his work injury, which the employee remembered to have been in August of 2003 rather than in June of that year.^[2]  The employee reported also that Amaybe three months ago, he went to Regions because of headaches,@ and Dr. Lebow noted that Ahe is left with headaches that are bifrontal where he got struck but also [generating from the back of his neck].  He states his neck is very stiff and sore.^([3])  It wakes him at night.  He has pain there.  He is noting some forgetfulness and angering easily as well.@  There is no record in evidence of a consultation by the employee regarding headaches at either St. Joseph=s in the summer of 2003^[4] or Regions near the end of that year.  Nevertheless, based apparently primarily on his interview with the employee, Dr. Lebow concluded as follows upon completion of his examination:

 

I think we are dealing with some post concussive effects with the anger and the memory and headaches as well as the frontal trauma causing some hyperextension of the neck and some residual occipital neuritic headaches and cervical strain type symptoms.  Although it has been nine months, he really has not had much in the way of attempts at treatment, and I think that would be reasonable to try.

 

Dr. Lebow prescribed Vioxx and physical therapy, which the employee subsequently underwent and from which he was discharged, with decreased symptoms, on April 7, 2004, due to three no-shows and A[n]on-compliance.@

 

On April 21, 2004, the employee returned to the Noran Clinic, where he reported to Certified Nurse Practitioner Charlotte Farmer that his pain was at a level five or six on a scale of one to ten.  Ms. Farmer noted that, at HCMC, pursuant to the employee=s June 2003 work injury,

 

all they did was suture up the lacerations at the bridge of the nose, but did not do any x-rays.  He was having quite a bit of difficulty with headaches and dizziness and then following that he went to United Healthcare for further evaluation.  They did a brain scan on him.  There was some concern that he may have had a bleed.

 

Ms. Farmer diagnosed in part (1) A[p]ost head trauma, initially with lacerations on forehead [and] bridge of nose,@ with consequent A[o]ngoing headaches@ and Asome memory difficulties,@ together with (2) a A[w]hiplash-type injury when the door hit his head, with ongoing cervical pain@ and Asome left shoulder pain@ and (3) Asome localized soreness in the medial left epicondyle region.@

 

On July 14, 2004, the employee was seen at HealthPartners for a routine checkup, at which he reported feeling generally well, except for some joint pain, especially after exercise, and some daily headaches and glaucoma eye pain.  The employee was apparently released without treatment upon completion of the checkup.

 

On August 4, 2004, Dr. Lebow noted that the employee was continuing to complain of headaches and left shoulder pain, suggesting that the employee=s symptoms were Awork-related problems from his [summer] 2003, injury.@  He indicated that, following the employee=s 2003 work injury, the employee had been Aleft with a bit of a post-concussive headache problem that has persisted now for a year and, I would say, is permanent [and] related to the injury.@ Ultimately, on a Health Care Provider Report apparently issued that same date, Dr. Lebow diagnosed several different conditions that he related to the employee=s summer 2003 work injury--including a cervical upper thoracic strain/sprain, cervicogenic headaches, left shoulder joint pain, a left elbow/forearm/wrist injury, a brain injury, and glaucoma.^[5]

 

On June 7, 2004, the employee filed a medical request, alleging entitlement to payment of his treatment expenses at the Noran Neurological Clinic, consequent to work-related injuries to his head, neck, and left shoulder in June of 2003.  In a medical response filed June 21, 2004, the employer and insurer denied the request on grounds that the employee=s treatment at the Noran clinic was unrelated to the employee=s work injury, and the matter proceeded to an administrative conference on August 10, 2004.  Pursuant to that conference, and by a decision and order filed August 16, 2004, the mediator/arbitrator concluded that the treatment at issue was a consequence of the employee=s June 13, 2003, work injury as claimed.  On September 13, 2004, the employer and insurer filed a request for formal hearing.

 

On October 19, 2004, the employee was examined for the employer and insurer by neurologist Dr. Richard Galbraith, who concluded that the employee was neurologically normal and that the headaches, dizzy spells, neck pain, and shoulder pain that had come on about nine months after his work injury were not causally related to that work injury.  It was also Dr. Galbraith=s opinion that the employee=s June 13, 2003, work injury was in the nature of three lacerations to the bridge of the employee=s nose and forehead and that those injuries had resolved by June 30, 2003, two weeks after the incident that caused them, by which date the employee had reached maximum medical improvement.  Dr. Galbraith concluded further that the employee was not subject to any permanent partial disability or to any physical restrictions consequent to his work injury and was not in need of any further medical care or treatment related thereto.  He opined that any medical care or treatment of the employee after June 30, 2003, was not causally related to the June 13, 2003, work injury, specifically including the care and treatment by Dr. Lebow beginning on March 1, 2004.

 

The matter came on for formal hearing on December 2, 2004.  Issues at hearing included (1) whether or not the employee=s work injury on June 13, 2003, was a substantial contributing factor in his need for treatment at the Noran Neurological Clinic beginning in March of 2004, (2) whether or not the employee gave notice of a June 13, 2003, neck and left shoulder injury in accordance with statutory requirements, and (3) whether or not treatment provided at the Noran Neurological Clinic from March 1, 2004, through the date of the hearing was reasonable and necessary.  The employer and insurer stipulated at hearing that the employee had sustained an injury on June 13, 2003, that had arisen out of and in the course of his employment, but they denied that that injury was anything more than lacerations to the nose and forehead.  The employee testified at hearing in part that his head, neck, and left upper extremity pain and memory/anger problems had commenced with his work injury and had essentially persisted from that time up through his commencement of treatment with Dr. Noran in March of 2004.  Also testifying at hearing was the employee=s supervisor in his job at the Metrodome, who testified that, subsequent to the employee=s work injury, the employee did not complain to him of any neck or shoulder or head pain until about March of 2004.  By findings and order filed January 5, 2005, the compensation judge concluded in part that the employee had failed to establish that he had had persistent neck pain, left shoulder pain, headaches, left elbow/forearm/wrist pain, and/or memory/anger problems from June 18, 2003, through March 1, 2004, and had failed to establish that his treatment at Noran Neurological Clinic from March 1, 2004, through the date of hearing was causally related to his June 13, 2003, work injury.  The employee appeals pro se.

 

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.

 

DECISION

 

The compensation judge denied the employee=s claim primarily on grounds that it was supported almost exclusively by the employee=s own testimony of persistent symptoms since the date of the injury, which testimony the judge found unpersuasive.  The substance of that same testimony was also critical to Dr. Lebow=s causation opinion, and the judge therefore found that opinion less compelling than Dr. Galbraith=s causation opinion.  The pro se employee cites no specific legal basis for his appeal.  We will address the matter as if the employee=s contention is that the judge=s material findings are unsupported by substantial evidence.  We are unpersuaded that they are.

 

In her memorandum, the compensation judge observed that key to Dr. Lebow=s opinion that the conditions noted in his August 4, 2004, Health Care Provider Report are related to the employee=s work injury is his apparent presumption that those conditions had their onset on the date of the work injury and have persisted ever since.   AThe evidence,@ the judge states,

 

does not bear out those beliefs.  There is no evidence of a[n] elbow/forearm/wrist injury or brain injury occurring on June 13, 2003, nor is there any evidence establishing the employee=s glaucoma is related to the work injury at issue.  As for the cervical strain, cervicogenic headaches and shoulder painBthe only evidence offered to support the onset and persistence of those conditions since June 13, 2003 is the employee=s testimonyBevidence I consider unpersuasive.

 

The judge goes on to support this credibility conclusion by noting that she finds highly unlikely the suggestion that someone who is normally so quick as the employee is to seek treatment for other maladies should go eight months without seeking treatment for persistent level five or six headache pain.  The judge then cites four specific examples from the medical records of the employee=s usual promptness in seeking medical attention, before going on to state that, in light of all of the evidence, she finds the opinion of Dr. Galbraith more compelling than that of Dr. Lebow.

 

As the supreme court has indicated and this court has long reiterated, assessment of a witness's credibility is the unique function of the trier of fact.  Brennan v. Joseph G. Brennan, M.D., 425 N.W.2d 837, 839-40, 41 W.C.D. 79, 82 (Minn. 1988), citing Spillman v. Morey Fish Co., 270 N.W.2d 781, 31 W.C.D. 187 (Minn. 1978).  In this case, the substance of the discredited testimony of the employee as to persistent symptoms for over eight months post work-injury is also basic and fundamental to the foundation for Dr. Lebow=s opinion.  It was therefore clearly reasonable and well within her discretion for the judge to choose to rely on the expert medical opinion of Dr. Galbraith over that of Dr. Lebow, there being no evidence that Dr. Galbraith=s opinion was based on any false factual premises.  See Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985) ("the 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").  Having noted that it is supported by expert medical opinion and concluding that it was not otherwise unreasonable in light of the record as a whole, we affirm the compensation judge=s denial of the employee=s request for payment of the outstanding treatment expenses with the Noran Neurological Clinic that are here at issue.  See  Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.