HASSAN I. ROBLE, Employee/Appellant, v. MARSDEN BLDG. MAINT./AMERICAN SEC., LLC, and ZURICH/BROADSPIRE SERVS., INC., Employer-Insurer, and MN DEP=T OF LABOR & INDUS./VRU, Intervenor.

 

WORKERS= COMPENSATION COURT OF APPEALS

JANUARY 9, 2008

 

No. WC07-184

 

HEADNOTES

 

EVIDENCE - EXPERT MEDICAL OPINION.  Where it was clear that the compensation judge did not disregard but instead considered in detail and weighed the unopposed expert opinions of the employee=s treating chiropractor that had been duly received into evidence without objection, where the judge=s decision to reject those opinions for lack of Afoundation@ was not unreasonable as a factual matter, and where the employee did not contest the judge=s denial of his claim on any basis other than the judge=s rejection of the chiropractor=s expert opinion, the compensation judge=s denial of the employee=s claim primarily on grounds that the chiropractor=s supporting expert opinions Alack foundation@ was neither clearly erroneous nor unsupported by substantial evidence.

 

Affirmed.

 

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

Compensation Judge: Danny P. Kelly

 

Attorneys: Lawrence C. Miller, Miller & Carlson, Minneapolis, MN, for the Appellant.  Randall S. Lane and Elizabeth Chambers-Brown, Heacox, Hartman, Koshmrl, Cosgriff, & Johnson, St. Paul, MN, for the Respondents.

 

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

The employee appeals from the compensation judge's finding that the expert medical opinions supporting the employee=s claim Alack foundation.@  The employer and insurer cross-appeal from the judge=s refusal to grant an extension of time for filing an independent medical examination report.  We affirm.

 

BACKGROUND

 

On October 9, 2000, Ethiopian immigrant Hassan Roble was involved in a motor vehicle accident, following which he complained of midline neck pain and was transported by ambulance on a stretcher to Hennepin County Medical Center, where he was diagnosed with low back pain and cervical strain and discharged after about three hours on a PRN basis.  About five years later, on January 11, 2006, Mr. Roble saw his family physician, Dr. Joel Thompson at the Bloomington Lake Clinic, regarding pain in his left ear and left jaw that he had experienced since the previous September and that had now rendered him unable to lie on his left side, Dr. Thompson=s notes indicating that Mr. Roble had been Ahit in that area prior to the onset of this pain.@  Mr. Roble later testified that the referenced prior incident involved an accidental blow to the side of his head as he was attempting to break up a fight between two friends.  Mr. Roble was treated again for left ear symptoms, along with a bronchial condition, about two weeks later, on January 23, 2006.  About two months after that, on about March 15, 2006, Mr. Roble [the employee] was involved in a motor vehicle accident when the company vehicle that he was driving was struck by a ABobcat@-type snow-removal tractor in the course of his work as a security guard with Marsden Building Maintenance/American Security, LLC [the employer].  The employee was forty-four years old on that date and was earning a weekly wage of $706.78.

 

Following his March 15, 2006, accident, the employee did not immediately seek medical treatment or lose any time from work, but he did report the accident to the employer on that date, and the First Report of Injury, as well as an accident investigation report, indicate that he was experiencing a headache together with soreness in his left shoulder and neck.  Six days later, on March 21, 2006, the employee sought treatment for related symptoms with Dr. Thompson, who noted a history of the March 15, 2006, accident, reporting that the employee had struck his head and his shoulder Aup against the side of the car interior@ in the context of the accident and had experienced Asubsequent discomfort in both areas.@  Physical examination revealed slightly diminished range of motion in the neck and some tenderness at the back of the left shoulder, but range of motion in the shoulder was good, upper extremities were neurologically excellent, skin was intact and without sign of contusion, and there was no sign of head injury, contusion, or swelling Aand really no tenderness either.@  Dr. Thompson diagnosed a Amild to moderate injury@ consequent to collision with a Aslow moving bobcat@ and recommended that the employee take Ibuprofen and Tylenol and Areturn in two weeks if symptoms are not totally cleared.@  The employee did not return in two weeks, and, although he did see Dr. Thompson at least three times in June and July of that year regarding pain and infection in his left ear, he made no subsequent mention to Dr. Thompson of any continuing symptoms in his neck or left shoulder.^[1]

 

On April 20, 2006, about a month after his examination by Dr. Thompson, and having apparently returned to work without restrictions and at no wage loss, the employee was examined by chiropractor Dr. Scott Koltes at Back to Health Chiropractic regarding complaints of severe and constant bilateral neck pain extending down into his upper back and left shoulder, together with mild pain in his right arm and severe pain in his left leg and lower back.  Dr. Koltes=s intake information indicates in part that the employee reported having neck and shoulder pain immediately after his March 15, 2006, accident and that two or more days later he went by private transportation to the Bloomington Clinic, where Dr. Thompson gave him a prescription with instructions to see him after two weeks.  Dr. Koltes=s treatment notes report in part that A[t]he [employee] denies having any prior history of any injuries to his neck back upper extremities or lower extremities prior to this work related motor vehicle impact the [employee] says he is presently not seeking any medical attention for any other health conditions at this time.@^[2]  Cervical, shoulder, and lumbar x-rays proved essentially normal, and, upon physical examination, Dr. Koltes diagnosed thoracic, cervical, lumbar, and pelvic strain/sprain, together with left shoulder strain/sprain with involuntary muscle spasm.  On that diagnosis, he restricted the employee from working for four weeks and commenced a regimen of conservative chiropractic care, and the employer and insurer apparently commenced payment of medical benefits.  On April 25, 2006, the employee completed a questionnaire for the insurer on which he reiterated that, prior to his March 16, 2006, accident,  he had never been in any motor vehicle accident and had never noticed any pain in his left shoulder, low back, or neck.

 

On May 25, 2006, upon referral by Dr. Koltes, the employee underwent MRI scans of his cervical and lumbar spine at Minnesota Radiology, which were read to reveal disc herniations at C4-5, C5-6, and L5-S1.  The report on those scans references a history of a motor vehicle accident on March 16, 2006,^[3] Awith sudden onset of neck and back pain.@  The employee remained off work through May 30, 2006, and on May 31, 2006, after eighteen chiropractic treatments, he returned to work with the employer four hours a day at light duty, restricted from lifting over ten pounds occasionally.  On June 2, 2006, the insurer provided notice to Back to Health Chiropractic of the twelve-week limit on passive treatment under the Minnesota Treatment Parameters,^[4] instructing that clinic to provide the insurer with a treatment plan if additional care was being requested.  On June 15, 2006, Dr. Koltes evidently requested of the insurer authorization to continue the employee=s treatment beyond the twelve-week limit.  There was no response from the insurer.  Over the course of the next month, the employee=s restrictions were gradually relaxed as he came to experience a seventy-percent reduction in his neck, back, and left shoulder pain.  On July 17, 2006, Dr. Koltes=s associate Dr. Jorge Hernandez noted that he had recommended that the employee be evaluated by a neurologist and that the employee was currently waiting for preauthorization from the employer and insurer.  The employee subsequently received continuing chiropractic treatment from Dr. Koltes, continuing to work for the employer within his restrictions at a wage less than his date-of-injury wage through October 20, 2006, when he was laid off for reasons unrelated to his work injury, due to the sale of his division of the employer.

 

On October 27, 2006, the employee filed a claim petition, alleging entitlement to temporary total disability benefits from April 20 to May 30, 2006, to temporary partial disability benefits from May 31 to October 20, 2006, to authorization for a referral to a neurologist, to unspecified medical expenses at Back to Health Chiropractic, to a rehabilitation consultation, and to interest, attorney fees, and attorney fee reimbursement under Minnesota Statutes section 176.081, subdivision 7, reserving a claim for permanent partial disability benefits - - all consequent to a work injury on March 15, 2006.

 

On December 6, 2006, the employee underwent a rehabilitation consultation with QRC Edward Adams at the Vocational Rehabilitation Unit of the Department of Labor and Industry, who found him eligible for rehabilitation services.  In his notes on that date, within the context of reporting the history of the employee=s March 15, 2006, accident, Mr. Adams reported that the employee Asaid that his left ear continues to ring and hurt and that there is ear drainage at night when he sleeps.@  Mr. Adams went on to state, still in that context, that the employee Asaid that he continues to have trouble sleeping on his left side and is especially bothered at night with pain in the left side of his head, in the ear region.@  About a week later, on December 12, 2006, the employee evidently testified by deposition, in part that he had never been involved in a motor vehicle accident prior to his March 15, 2006, work accident, that he had never before had a problem with his neck or his low back, and that he had never been to Hennepin County Medical Center for any reason other than once to have some teeth removed.^[5]  On December 20, 2006, QRC Adams indicated in case notes that the only problems that the employee was then having were Apain symptoms on one side of his head from the impact of the injury that had occurred in March.@  On the following day, Dr. Koltes relaxed the employee=s restrictions further, permitting the employee to work six hours a day, five days a week, restricted from lifting over twenty-five pounds occasionally and ten pounds frequently.  An R-2 Rehabilitation Plan was filed on December 22, 2006, identifying a vocational goal of returning the employee to work with either his date-of-injury employer, which at that time had no suitable work for the employee, or a different employer.

 

On January 15, 2007, the employee was examined for the employer and insurer by Dr. Mark Friedland, who did not immediately report on that examination.  The following day, on January 16, 2007, the employee met with placement specialist Suzanne Hiltner to begin a job search process.  Subsequent reports of Ms. Hiltner the following month indicate that she contacted over a hundred employers on the employee=s behalf and furnished the employee with apparently thirty job leads, which he had duly followed up on.

 

In a report dated March 12, 2007, Dr. Koltes opined that the employee=s March 15, 2006, accident had resulted in injuries to the employee=s neck and back discs, nerve structures, and muscle and ligament elements, as well as permanent vocational and recreational restrictions and the need for future chiropractic and medical management.  In his history of the accident in that report, Dr. Koltes asserted in part that A[i]mmediately following the impact [of the Bobcat] the [employee] did start experiencing significant pain to his neck and back and sought out treatment immediately.@  Dr. Koltes opined in his report that all of his treatment of the employee had been reasonable and necessary and related solely to work injuries sustained in the March 15, 2006, accident.

 

The matter came on for hearing on March 14, 2007, by which date the employee had not returned to work with any employer since his layoff on October 20, 2006, and had not yet been examined by a neurologist.  He had also evidently received forty-four additional chiropractic treatments between August 30, 2006, and February 23, 2007, although chiropractic notes in evidence detail only those treatments received through October 9, 2006.  The employer and insurer admitted at hearing a temporary injury to the employee=s head, neck, and left shoulder lasting no longer than the initial twelve weeks of chiropractic treatment, and they indicated that they had paid for the employee=s treatment through August of 2006 and were not seeking any reimbursement.  They denied, however, liability for any low back injury or for any other injury beyond the period of that twelve weeks of chiropractic care.  Issues at hearing included the following:  (1) the nature and extent of the employee=s March 15, 2006, personal injury; (2) the date of maximum medical improvement; (3) the employee=s entitlement to temporary total disability benefits from April 20, 2006, through May 30, 2006, and continuing from October 21, 2006; (4) the employee=s entitlement to temporary partial disability benefits from May 31, 2006, through October 20, 2006; (5) the employee=s entitlement to rehabilitation services; (6) the reasonableness, necessity, and causal relatedness of certain outstanding chiropractic and medical expenses; and (7) the intervention interest of the Department of Labor and Industry=s Vocational Rehabilitation Unit.

 

Near the beginning of the hearing, the compensation judge sustained the employee=s objection to admission of the January 15, 2007, report of Dr. Friedland on grounds that it had not been served and filed within one hundred twenty days of the employee=s claim petition, as required under Minnesota Statutes section 176.155, subdivision 1, and good cause had not been shown for an extension, as permitted under that section.  Other evidence submitted at hearing included the testimony of the employee, who testified in part that he had told a bystander on the street immediately after the March 15, 2006, accident, AI=m okay,@ and that his supervisor had told him to return to work Aif you feel better@ and A[i]f you don=t feel it go to the hospital.@  The employee testified that he completed his work in fifteen minutes and, feeling no immediate pain, discomfort, or symptoms of any kind immediately after his accident, did not seek medical attention until, about six days later, after developing neck and left upper body symptoms, he saw Dr. Thompson.  He testified that he was next treated about a month later by Dr. Koltes, to whom he had been referred by a friend named AI don=t know, Ishmael . . . or Abdi, something like that@ and whose intake forms he had been assisted in filling out by another, different, person named Abdi.

 

Also testifying at hearing was the employee=s placement vendor, Suzanne Hiltner.  Ms. Hiltner testified in part that the employee had cooperated with her rehabilitation assistance, that he had evidently followed up with job leads that she had provided him, submitting at least three applications and participating in at least two interviews.  Ms. Hiltner testified also, however, that the employee never did comply with her request that he provide her with logs of his job search, the employee claiming that his wife had mistakenly discarded the logs.  Also testifying at hearing was QRC Adams, who also indicated that the employee had cooperated with rehabilitation efforts.  On cross-examination, Mr.  Adams testified further that, prior to hearing the employee=s testimony at hearing, he had been unaware of the employee=s October 2000 motor vehicle accident or that the employee had been receiving treatment for symptoms in the left ear region of his head since before the date of his work injury.

 

By findings and order filed June 11, 2007, and finding expressly that the opinions of Dr. Koltes lacked foundation on several specified grounds, the compensation judge concluded in part that the employee=s March 15, 2006, work injury had been a temporary aggravation of a preexisting neck and left shoulder condition, which had resolved no later than April 4, 2006, two weeks after Dr. Thompson=s March 21, 2006, examination.  On that basis, the judge denied all of the employee=s claims for benefits subsequent to that date.  The employee appeals from the judge=s finding that Dr. Koltes=s opinion lacked foundation and from the judge=s denial of benefits, and the employer and insurer cross-appeal from the judge=s exclusion of Dr. Friedland=s report of January 15, 2007.

 

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 concluded at Finding 26 that the employee had sustained a work-related temporary aggravation of a preexisting neck and left shoulder injury on March 15, 2006, which had resolved no later than April 4, 2006, two weeks after Dr. Thompson=s March 21, 2006, examination.  On that basis the judge denied, at Finding 27 and Orders 1 through 6, all claims of the employee for benefits subsequent to that resolution.  The judge=s conclusion was apparently based in important part on the judge=s conclusion in Finding 25 that

 

[t]he opinions of Dr. Koltes lack foundation.  Dr. Koltes was not informed of a prior motor vehicle accident or the blow to the employee=s head in September 2005.  Dr. Koltes inaccurately believes the employee immediately experienced significant pain to the neck and back following the March 15, 2006 accident.  Dr. Koltes inaccurately believes that the employee sought out treatment immediately at the Bloomington Lake Clinic following the March 15, 2006 accident.  Dr. Koltes inaccurately believes that the employee was transported to a Bloomington clinic for treatment.  Dr. Koltes lacked knowledge of a prior history and lacks an accurate account of the March 15, 2006 accident and subsequent treatment.  Said lack of knowledge undermines the foundation for his causation opinions.

 

The employee contends that the judge=s conclusion that the opinions of Dr. Koltes lack foundation is both clearly erroneous legally and unsupported by substantial evidence of record.  As matters of law, the employee argues as follows:  (1) that expert medical opinion may not be entirely disregarded once it is admitted into evidence, the issue at that point becoming one of weight rather than of competence;^[6] (2) that an expert need not be aware of all of the exact details of an employee=s medical history in order to render a valid opinion,^[7] the expert=s lack of information again going only to the weight of his opinion rather than to its foundation;^[8] and (3) that no medical opinion contrary to Dr. Koltes=s opinion was received into evidence, and a factfinder is generally not free to disregard unopposed medical opinion.^[9]  As factual matters, the employee addresses separately each of the five apparent misconceptions of Dr. Koltes that the judge identifies in Finding 25.  The employee does not directly contest the denial of his benefits on any ground unrelated to the judge=s rejection of Dr. Koltes=s medical opinion.  We are not persuaded.

 

We would note at the outset here that, given especially his evident attention to several specific inherent weaknesses, the compensation judge in this case does not appear to have actually excluded, on a foundational basis, Dr. Koltes=s opinions from evidence in any truly legal sense.  Rather, he appears to have rejected those opinions on a factual basis after weighing them in some detail, as was proper, in that there was no motion at hearing for their exclusion on a foundational basis and they were properly admitted into the evidence of record.  See Kelsey v. Lovegreen Indus. Servs., No. WC07-159 (W.C.C.A. Dec. 12, 2007) (Asimple fairness to opposing parties and to the compensation judge would mandate that a party who claims that reliance on the report is error as a matter of law should advise the compensation judge of that argument@).  In this case, we agree with the employee=s articulation of the law, but we see no reason to conclude that the compensation judge did not find as he did by treating Dr. Koltes=s opinions as a matter of weight rather than of foundation.  Although it is true that a judge may not ignore an unopposed medical opinion, it is clear in this case, from the judge=s very articulation of what he saw as five specific weaknesses in Dr. Koltes=s understanding of the facts, that the judge examined and considered the opinions of Dr. Koltes carefully in reaching his decision.

 

The five weaknesses that the judge identifies in Dr. Koltes=s opinions are as follows: (1) that the doctor was apparently not informed of the employee=s October 9, 2000, motor vehicle accident; (2) that he was apparently not informed of the employee=s September 2005 blow to the head; (3) that he was apparently of the understanding that the employee experienced significant pain to the neck and back immediately following the March 15, 2006, work accident; (4) that he was apparently of the understanding that the employee sought out treatment at the Bloomington Lake Clinic immediately after the work accident; and (5) that he was apparently of the understanding that the employee was transported to the Bloomington clinic for his treatment subsequent to the accident, contrary to the employee=s testimony at hearing.

 

The October 9, 2000, motor vehicle accident.  In his treatment notes on his initial examination of the employee on April 20, 2006, Dr. Koltes reported that the employee had denied ever having any injuries to his neck or back or upper or lower extremities prior to his March 15, 2006, work-related accident.  Nor is there any notation in any of his records that the employee complained of neck pain after a motor vehicle accident on October 9, 2000, and was subsequently taken by ambulance to Hennepin County Medica Center, where he was diagnosed with low back pain and cervical strain prior to his release a few hours later.  Moreover, the appearance that Dr. Koltes was unaware of this history is reinforced by the employee=s own evident deposition denial on December 12, 2006,^[10] that he had ever been involved in a motor vehicle accident prior to his March 15, 2006, work accident and by QRC Adams=s testimony at hearing that he, too, had been unaware of the employee=s October 2000 motor vehicle accident, prior to hearing the employee=s testimony at hearing.  The employee argues that

 

that omission by the Employee and apparent lack of knowledge by Dr. Koltes is irrelevant and immaterial, however, given the minimal immediate symptoms experienced by the employee following that [2000] accident, the negative examination findings at the HCMC Emergency Room, the lack of any follow up treatment and the Employee=s uncontroverted testimony that his symptoms fully resolved following that accident.

 

He contends that A[t]here is absolutely no evidence of record supporting the contention that the Employee sustained significant injury on October 9, 2000 or that any such injury was a substantial contributing cause of his neck and low back symptoms following the March 15, 2006 work incident.@  We conclude, however, that it was not unreasonable for the compensation judge to presume that the employee=s emergency room examination and diagnosis for very related symptoms after the ambulance-compelling accident in 2000 were factors reasonably material to a persuasive causation opinion in this case.

 

The September 2005 blow to the head.  About two months prior to his March 2006 work injury, the employee was treated by Dr. Thompson for some left ear and jaw symptoms apparently consequent to a blow to the head that he had sustained about four months earlier in the process of breaking up a fight between two friends.  He testified at hearing that he was continuing to experience left ear symptoms at the time he began treating with Dr. Koltes.  In addition to other symptoms related to the employee=s March 2006 accident, Dr. Koltes addressed his chiropractic treatment to the employee=s left-side neck symptoms, though not to any head symptom per se.  Nowhere in his records does Dr. Koltes mention the September 2005 blow to the employee=s head and its treatment by Dr. Thompson, and the compensation judge found this to be evidence of a deficiency in Dr. Koltes=s foundation for addressing causation of the employee=s ongoing neck symptoms.  The employee contends that A[the September 2005] >injury= was so insignificant that it is barely worthy of mention@ and that even ADr. Thompson does not attribute the Employee=s symptoms to the September 2005 blow to the head or anything other than an ear infection.@  We note however, contrary to the employee=s suggestion, that Dr. Thompson=s first attention to the employee=s left ear and jaw pain on January 11, 2006, indicates that that pain had persisted Asince last September@ and, a short sentence later, that A[h]e was hit in that area prior to the onset of this pain.@  Moreover, the etiology of the pain is apparently at least ambiguous for Dr. Thompson still on June 2, 2006, when he notes that Aat present I cannot rule out the possibility of a perforation versus continuing problems.@  Further, in his December 6, 2006, notes on the employee=s rehabilitation consultation, QRC Adams also appears to imply that the employee=s Apain in the left side of his head, in the ear region@ may be due to his work injury and not just to an unrelated infection.  Indeed, by the 20th of that month, Mr. Adams notes that the employee=s only problem at that time was Apain symptoms on one side of his head from the impact of the injury that had occurred in March.@  Given these suggestions of actual head injury and not just ear infection in the records of Dr. Thompson and QRC Adams, it was not unreasonable for the compensation judge to conclude that Dr. Koltes= opinion as to the employee=s neck injury would be more persuasive were he aware of the September 2005 blow to the head for which the employee was apparently treated at least as late as January 2006.

 

The experience of Aimmediate@ Asignificant@ pain.  In his narrative report on March 12, 2007, Dr. Koltes states that A[i]mmediately following the impact [of the Bobcat] the [employee] did start experiencing significant pain to his neck and back and sought out treatment immediately at the Bloomington Lake Clinic in Minneapolis.@  The employee testified that, feeling no disabling pain or discomfort immediately after the accident, he completed his work shift and did not seek medical attention until about six days later, when he saw Dr. Thompson regarding neck and upper back symptoms that had developed in the interim.  Citing a dictionary definition of Aimmediate,@ the employee contends that the critical evidentiary issue here is not that his pain did not set in within minutes of the March 15, 2006, collision but that no alternative cause of that pain intervened between the time of the collision and the onset of pain several days later.  We do not finding the argument very persuasive, given the quite different probative effect of  the two times of onset.  More importantly, however, when it eventually did come on, the pain was clearly not Asignificant@ enough even six days later for Dr. Thompson to diagnose more than a A[m]ild to moderate@ injury upon collision with a Aslow moving@ Bobcat, with very few clinical consequences, and to release the employee to work apparently without restrictions, prescribing only some over-the-counter anti-inflammatories and recommending follow-up only if symptoms did not subside.  Given this context, it was not unreasonable for the compensation judge to find Dr. Koltes=s presumption of Asignificant@ neck and back pain Aimmediately@ upon impact with the Bobcat to be detrimental to the credibility of his causation opinion.

 

The pursuit of immediate treatment.  As suggested already just above, the employee did not, contrary to Dr. Koltes=s evident presumption, As[eek] out treatment immediately@ following his March 15, 2006, work accident.  Citing information reported by the employee in his intake documents, the employee contends that ADr. Koltes was apparently made aware then by the Employee that he did not present to the Bloomington Lake Clinic >immediately=@ and that ADr. Koltes[=s] use of that term is [only] a mistake on his part and very well may be attributed to his use of Dragon Dictation [sic] software which he testified can cause typographical errors.@  That mistake is immaterial, he argues, given the employee=s information on the intake documents, and, Amore importantly, there is no evidence of any intervening causes of the Employee=s symptoms.@  Again, we conclude that it was not unreasonable for the compensation judge to find the probative value of Dr. Koltes=s opinion diminished by the certainly less than clear presumption asserted therein.

 

Transportation to the Bloomington clinic.  In his initial treatment notes, Dr. Koltes reported that A[t]he [employee] says that he was transported to a Bloomington Clinic@ following his March 15, 2006, work accident.  There is no evidence that the employee passively Awas transported@ as opposed to actively Atransported himself,@ and the compensation judge apparently read Awas transported@ as implying a misunderstanding by Dr. Koltes as to the physical competence of the employee at the time of his transportation to the clinic.  The employee contends that A[t]he Employee accurately indicated on [the chiropractic clinic=s >Vehicle Impact Information=] form . . . that he went home after the accident, [and] two or more days after the accident he was taken by private transportation to the Bloomington Clinic@ (underscoring added), and that A[a]ll of that information is consistent with the evidence of record in this matter and none of it is erroneous@ and A[a]s such, it cannot possibly undermine or weaken Dr. Koltes= causation opinion.@  The employee does not address the passive grammatical construction that Dr. Koltes employed and that apparently triggered the compensation judge=s questioning of Dr. Koltes=s understanding of the facts.  While this potential misunderstanding by Dr. Koltes would certainly not disqualify Dr. Koltes=s opinions in and of itself, it was not unreasonable for the compensation judge to consider it cumulatively with the other enumerated lapses as detrimental to those opinions= credibility.

 

We conclude that it would not have been unreasonable for the compensation judge to find Dr. Koltes=s causation opinion to be of insufficient weight to rely on, due to the several lapses and misconceptions identified by the judge.  In the end, as the employer and insurer have argued, a judge=s decision whether or not to rely on a given medical opinion that is being weighed in evidence is a matter of credibility, and a judge=s decision not to credit and rely on an opinion is the judge=s prerogative.  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); see also Tuomela v. Reserve Mining Co., 299 Minn. 203, 204, 216 N.W.2d 638, 639, 27 W.C.D. 312, 313 (1974) (although, under Flansburg v. Giza, 284 Minn. 199, 201-02, 169 N.W.2d 744, 746, 25 W.C.D. 3, 6 (1969), unopposed expert medical testimony cannot be disregarded, such testimony is not necessarily conclusive upon the trier of fact).  In this case, given particularly the clear credibility issues as to what the employee may or may not have reported to various individuals about the events and consequences of his medical history and his work accident, whether by intent or by memory lapse, there is ample evidence in the medical record and in the record at large to support the judge=s conclusion that the employee did not prove his claims.  Therefore we affirm the judge=s decision.  See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239; see also Brennan v. Joseph G. Brennan, M.D., 425 N.W.2d 837, 839-40, 41 W.C.D. 79, 82 (Minn. 1988) (assessment of a witness's credibility is the unique function of the trier of fact), citing Spillman v. Morey Fish Co., 270 N.W.2d 781, 31 W.C.D. 187 (Minn. 1978).  In that we have affirmed the compensation judge=s denial of all of the employee=s claims for benefits, we need not address the employer and insurer=s cross-appeal from the judge=s exclusion of the January 15, 2007, report of Dr. Friedland.