ASHER ALLEN, Employee/Appellant, v. MINN. VIKINGS FOOTBALL CLUB and FED. INS. CO., Employer-Insurer/Respondents.

The employee appeals the compensation judge’s denial of temporary partial disability benefits.  We affirm.

Asher Allen, the employee, was employed by the Minnesota Vikings Football Club, the employer, as a cornerback for three football seasons from 2009 through 2012.  The employer was insured for workers’ compensation liability by Federal Insurance Company.  The employee sustained various injuries while working for the employer, including a right shoulder injury in January 2010, a mid-back injury in October 2010, and a left great toe injury in August 2011.  The employee also sustained multiple concussions while playing football for the employer.  Two concussions were reported to the employer and admitted as injuries by the employer, while two claimed concussions were either not reported to the employer or not recorded as a concussion injury by the employer at the time of occurrence.

The employee testified that the first non-reported concussion occurred on November 15, 2009, when he sustained a helmet-to-helmet hit during a game, and felt dazed afterwards as he headed toward the wrong sideline.  At the hearing, he claimed that he did not report this injury because if he had, he would not be able to go home to visit his family during the following bye week.  He testified that he realized something was going on when he was home since he did not feel happy and his “whole thought process was off.”  (T. 50-51.)

On November 7, 2010, the employee sustained an admitted concussion injury while making a tackle during a game.  The employee was examined under the employer’s concussion protocol by a trainer and evaluated by a team physician.  He reported visual changes, dizziness, tingling in his toes, headache, difficulty with memory, and feeling slowed down.  He also gave a nonsensical answer to a question and was told he was done for the day.  After the game, he demonstrated full cognitive function and memory comprehension and the next day he passed an Impact test.^[1]  On November 9, 2010, he reported light sensitivity after working out.

The employee was examined by Dr. Steven Stein at the Minneapolis Clinic of Neurology on November 10, 2010.  The next day, the employee was evaluated by Dr. Dave Olson, a team physician, and was cleared to perform strenuous exercises.  He exercised and reported feeling “glossy” afterwards.  On November 11, 2010, the employee reported a headache after a workout and was not allowed to participate in practice.  The employee saw Dr. Sheldon Burns, a team physician, on November 12, 2010.  The employee did not participate in the next regular season game.  A November 15, 2010, MRI scan of the brain was read as not suggesting diffuse axonal injury.  The employee was evaluated for concussion by Dr. Christopher Larson, a team physician, on November 15, 2010, and was released to play on November 17, 2010.  The employee reported that he continued to have light sensitivity and headaches, and obtained a tinted visor for his helmet to help with the light sensitivity.

On October 23, 2011, the employee was hit while making a tackle.  After the next series of downs, he was taken out of the game.  The employee was examined under the concussion protocol, but the incident was not recorded as a concussion.  The employee was examined by Dr. Burns after reporting a headache after the game.  Dr. Burns noted that the employee did not lose consciousness, but said he felt foggy for 5 to 10 seconds after the incident.  The employee did not have any amnesia or dysfunction.

On December 18, 2011, the employee sustained an admitted concussion injury while making a tackle in the first quarter of a game.  He was removed from the field and evaluated on the sideline by Dr. Burns.  The employee initially denied concussion symptoms and briefly returned to the game.  He was seen squinting and was removed from the sidelines for concussion testing and was out for the rest of the game.  After the game, he reported a headache.  The next day, he had symptoms of headache and feeling foggy.  At the hearing, the employee described his symptoms after the injury as feeling dazed, seeing stars and colors, dizziness, confusion, and feeling unbalanced.  He had some lower scores on the Impact test on visual memory questions.  On December 21, 2011, the employee was evaluated by Dr. Olson for follow up after a concussion episode.  The employee reported feeling well but after exercise he had a headache and felt foggy.  Dr. Olson recommended that the employee be held out until his symptoms resolved and then be evaluated by an independent neurologist.  On December 22, 2011, the employee noticed some dizziness and Dr. Burns recommended that he not do heavy workouts.  The employee reported feeling better on December 23, 2011, but did not travel for the next game.

On December 26, 2011, the employee reported feeling asymptomatic.  He did well on the Impact test and exercised without residuals.  Dr. Stein evaluated the employee on December 27, 2011, and diagnosed a concussion, asymptomatic for 24 hours.  He noted that the employee’s Impact score was back at baseline or maybe even above baseline.  He allowed the employee to do a full physical workout the next day and recommended that the employee not return to active play unless he remained asymptomatic.  The employee returned to full participation on December 28, 2011.  The employee testified that he continued to experience light sensitivity and headaches with exertion, but that he played the last game of the season in January 2012 despite these symptoms because of the pressure to play or to be cut from the team.

In April 2012, the employee discussed his light sensitivity with a Vikings’ employee and was referred to Dr. James Mitchell, a neuro-ophthalmologist at McCannel Eye Clinic.  The employee was examined by Dr. Mitchell on April 30, 2012.  Dr. Mitchell noted mild dry eyes and mild ocular inflammation suggestive of allergic conjunctivitis.  While Dr. Mitchell opined that the employee’s recurrent concussion could be a contributing factor to his light sensitivity, the doctor first treated the ocular inflammation to see if that resolved the problem.  In May 2012, the employee reported that eye medication had not helped much.

On May 29, 2012, the employee submitted a letter to Rick Spielman, the employer’s vice president of player personnel at that time, stating that the letter was “to inform you of my intention to retire from my playing career in the National Football League.”  (Employer’s Ex. 9.)  The letter did not state why he was retiring.  The employee met with Mr. Spielman and told him that he no longer wanted to play football and that he wanted to focus on his religious ministry.  In a newspaper article, the Vikings head coach stated that the employee did not mention health concerns as a reason for leaving.  In a newspaper interview, the employee was asked if he retired because of his concussions and the employee responded that it was “part of the equation,” that he wanted quality of life, and that he wanted to give back to the community in a different way.  (Employer’s Ex. 10.)  At the hearing, the employee testified that he could not perform at a high level because of the effects of the concussions, that he was concerned about repeated head trauma and the risks associated with that trauma, and that his symptoms made him increasingly irritable.

On February 20, 2013, the employee underwent an assessment for the National Football League with neurologist Dr. M. Schlosberg, who opined that the employee had symptoms of memory loss and photophobia which were suggestive of a mild post-concussion syndrome, but that the memory performance should be verified and validated with a neuropsychological evaluation.  Dr. Schlosberg also noted that headaches with physical exertion can occur with post-concussion syndrome, but was “not comfortable assessing disability without a neuropsychological assessment to validate [the employee’s] memory complaint.”  (Employee’s Ex. R.)

From December 2012 through May 2013, the employee treated with Yael M. Rubin, Ph. D., a licensed clinical psychologist, for “support in improving his cognitive skills based on any problems that may have been the result of head injury.”  (Employer’s Ex. C.)  Dr. Rubin noted that the employee had challenges in maintaining focus and concentrating on exercises, and recommended tools and exercises for the employee to improve his memory.  Dr. Rubin assessed the employee using the WAIS-VI (Wechsler Adult Intelligence Scale, 4th Edition), a neurocognitive measurement, as a guideline for provisional diagnosis and treatment, but noted that the results “must be confirmed or refuted by a thorough neurological examination and neurological testing.”  (Id.)

On November 11, 2013, the employee was also evaluated by Dr. Steven Noran, who assessed traumatic brain injury, persistent symptoms including cognitive functioning, and photophobia with associated headaches.  A November 11, 2013, MRI scan of the employee’s head was interpreted as normal.  In December 2013, Dr. Noran stated that the employee may be at maximum medical improvement.  In a May 15, 2014, report, Dr. Noran opined that the employee’s injuries were permanent and that he was barred from contact sports.  In June 2014, Dr. Noran again assessed traumatic brain injury and persistent photophobia secondary to traumatic brain injury.  Dr. Noran acknowledged at a deposition that he had not conducted neuropsychological testing on the employee.  (Employee’s Ex. FF pp. 22-24.)

In January 2014, the employee began working as a functional medical consultant, assisting medical professionals with natural methods of treating patients and selling natural supplements on a commission basis.  The employee claimed temporary total disability benefits from May 20, 2012, the date he resigned from the employer, through December 31, 2013, the date of maximum medical improvement; temporary partial disability benefits from January 1, 2014, through the date of the hearing; and permanent partial disability for traumatic brain injury and for a thoracic spine injury.

Dr. John Cronin conducted a medical records review at the employer and insurer’s request.  In a February 11, 2014, report, Dr. Cronin opined that the employee “does not present with any indication of traumatic brain injury or neurocognitive insufficiency, certainly nothing that would prevent him from functioning within the daily requirements of professional football.”  (Employer’s Ex. 7.)  Dr. Cronin reviewed Dr. Rubin’s report and noted that she had not administered any recognized psychometric tests related to personality, such as the MMPI-2, and therefore any opinion on the employee’s “neurocognitive status would have to be cautiously interpreted . . . .”  (Id.)  Regarding the testing that was done, Dr. Cronin opined:

In a supplemental report dated April 11, 2014, Dr. Cronin stated that Dr. Noran’s examinations did not seem to indicate any positive findings for brain injury and the only indication of any type of traumatic brain injury was the employee’s report of symptoms.  He concluded that the employee lacked neurological findings of a head injury based on the normal MRI and one test that “hardly seems ‘abnormal.’ ”  (Employer’s Ex. 7.)  Dr. Cronin emphasized that there “needs to be a full standardized neuropsychological assessment to determine what, if any, neurocognitive impairment [the employee] has at this point in his life.”  (Id.)

A hearing was held on March 25, 2015.  The compensation judge denied the employee’s permanent partial disability claims and his temporary total and temporary partial disability claims.  The employee appeals the judge’s denial of temporary partial disability benefits, which was based on the judge’s finding that the employee’s work injuries were not a substantial contributing cause of his reduced wages since he had not shown that he had sustained a traumatic brain injury as a consequence of his work injuries.

In reviewing cases on appeal, the Workers’ Compensation Court of Appeals must determine whether “the findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.”  Minn. Stat. § 176.421, subd. 1.  Substantial evidence supports the findings if, in the context of the entire record, “they 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, “[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 Foods 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, “unless 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.

The employee appeals the compensation judge’s denial of temporary partial disability benefits.  Temporary partial disability benefits are payable where the injured employee has a physical disability, is able to work subject to that disability, and has an actual loss of earning capacity causally related to the disability.  Morehouse v. Geo. A. Hormel & Co., 313 N.W.2d 8, 34 W.C.D. 314 (Minn. 1981).  The employee has the burden of proving that his work injuries caused his disability.  It is not necessary, however, for the employee to show that his concussions were the sole cause of his disability, but that they were an appreciable or substantial contributing cause.  See Salmon v. Wheelabrator Frye, 409 N.W.2d 495, 497-98, 40 W.C.D. 117, 122 (Minn. 1987).

The compensation judge’s denial of temporary partial disability benefits was based on the finding that the employee had not proven that he had sustained a traumatic brain injury as a result of his concussions.  The judge specifically accepted Dr. Cronin’s testimony that such injuries cannot be diagnosed without full and complete psychometric testing.  The judge noted that such testing was recommended by Drs. Schlosberg and Rubin, but that Dr. Noran had not conducted such testing.  The judge concluded that there was no evidence presented that the employee had undergone a full and complete neuropsychiatric/neuropsychometric testing as of the date of hearing.  (Finding 51.)  As a result, the judge found that the employee failed to establish a causal relationship between his work injuries and his reduced wages, noting that the employee was cleared to play football with respect to all of his injuries at the time he retired and that there was no credible evidence refuting his clearance to play without a diagnosis of a traumatic brain injury.

The compensation judge emphasized that the employee had not completed the full battery of psychometric testing necessary to diagnose traumatic brain injury as recommended by the medical experts.  Dr. Schlosberg was “not comfortable assessing disability without a neuropsychological assessment to validate [the employee’s] memory complaint.”  (Employee’s Ex. R.)  Dr. Rubin, a licensed clinical psychologist, noted that a thorough neurological examination and neurological testing were needed.  Dr. Cronin emphasized that there “needs to be a full standardized neuropsychological assessment to determine what, if any, neurocognitive impairment [the employee] has at this point in his life.”  (Employer’s Ex. 7.)  Dr. Noran acknowledged at a deposition that he did not conduct a battery of neuropsychological testing on the employee.  Substantial evidence supports the judge’s finding that the employee had not proven that he sustained a traumatic brain injury as a result of his concussions, and that the employee had therefore not established a causal relationship between his work injuries and his reduced wages.  Accordingly, we affirm.