The employee appealed the compensation judge’s dismissal of her petition for payment of medical benefits and termination of temporary total disability benefits.  In reaching that result, the compensation judge relied on a finding that the employee did not experience a concussion in her October 7, 2014 work injury.  As that finding is unsupported by substantial evidence and contrary to the evidence in the record, we reverse.  As a result of that reversal, other findings are vacated and the matter is remanded.

On October 7, 2014, while working as a bus monitor in the employ of Independent School District (ISD) 152, the employee sustained a headfirst fall into the stairwell of a school bus.  The fall was caused by the bus driver initiating a panic stop when the bus was cut off by another driver.  The employee had no warning of the stop and she was unable to brace herself, or in any other fashion, cushion the impact of the fall.  The employee struck the left side of her head against an equipment tray set into the front console and landed on her left arm.  The fall was captured on the bus surveillance camera.  The employee immediately reached for her head with her right hand.  The bus driver asked the employee if she was all right and she responded “not really.”  The bus driver assisted the employee to her seat on the bus.  The employee complained of an injury to her left arm and was holding the top of her head with her right arm.  After the bus driver got the employee to her seat, the employee said that she would be all right.  The bus driver expressed continued concern that the employee was not all right.^[1]

The school bus driver took the employee to the location where she would normally transfer to go on to assist other students.  The two coworkers who met the employee there were not persuaded that she could assist other students due to her condition.  Instead, the coworkers brought the employee to the ISD 152 transportation center and called 911.  The coworkers had the employee lie on the floor of the transportation center.  The ambulance transported the employee to the Essentia Health Emergency Department.  The employee was examined by Pamela Holtz, DNP, NP-C, who indicated that the employee denied losing consciousness and was not dizzy or light-headed.  The medical record indicates that the employee “hit her head hard” and that she was experiencing head pain on the left side.  A CT scan of the employee’s head performed at the time was negative.  The employee was diagnosed with a head injury and left arm contusion.  The employee was instructed to use ice, compression, elevation, to get rest and take ibuprofen as needed for pain.^[2]

The next day, on October 8, 2014, the employee was examined by Craig Kuhlman, M.D.  Dr. Kuhlman noted that the employee was having headache problems along with pain in her neck, left shoulder, left arm, and left wrist but had no symptoms of concussion.^[3]  The following day, the employee appeared at the emergency room for treatment where she complained of continued headaches, confusion issues, and trouble finding her words.  Another CT scan was conducted which was normal.  The employee was diagnosed with post-concussion syndrome.  (Employee’s Exhibits B and F.)  The employee was examined by Michael Sheldon, M.D., on October 14, 2014.  Dr. Sheldon diagnosed the employee as showing post-concussive symptoms as well as neck, shoulder, elbow, and wrist pain.  Dr. Sheldon referred the employee for a neuropsychological assessment and continued the employee on Neurontin.  (Employee’s Exhibits B and F.)

On October 18, 2014, the employee experienced a dark nasal discharge lasting several days and, in a follow-up examination, continued to complain of ongoing headaches.

The employee was examined by Gregory Hauge, Ph.D., where the employee described “islands of memory” related to the period immediately after the October 7, 2014, work injury.  The employee described being “in and out” following the injury, including at the emergency department.  The employee related continuing problems with concentration, reading, spelling, and retaining information.  The employee displayed a variety of cognitive inefficiencies through a battery of psychological tests administered by Dr. Hauge.  Dr. Hauge observed the employee’s description of emotional disturbances was consistent with a concussive injury.^[4]

On October 24, 2014, the employee was examined for orthopedic issues by Ryan Kessel, PA-C.  The employee was treated for a stable closed head injury, left shoulder strain with pain upon motion, left wrist injury, and a left elbow injury which was stable.  The employee underwent a left shoulder injection which afforded pain relief.  A splint was applied to the employee’s left elbow and physical therapy was initiated.^[5]

On October 27, 2014, Dr. Hauge developed a treatment plan for the employee based on her apparent concussive injury.^[6]  On November 4, 2014, Dr. Hauge restricted the employee from driving, noting that she was demonstrating cognitive and memory difficulties.^[7]  The notes from the employee’s physical therapy sessions indicate that the employee continued to suffer from headaches and cognitive impairments.^[8]

On December 29, 2014, Dr. Hauge conducted a follow-up examination of the employee where he observed word finding pauses and noted that the employee’s emotional status showed variability.  The employee reported one instance of driving with her son where she had difficulty finding her way home.  In all other respects, the employee reported improvement in cognitive functions.  Dr. Hauge indicated that the employee could continue driving when accompanied by her spouse in non-stressful situations.^[9]

On January 7, 2015, the employee was a passenger in a motor vehicle which was rear-ended by a pickup truck.  The employee was examined by Brian Sauter, M.D., immediately after the collision.  The employee was diagnosed with neck sprain, left shoulder contusion, and thoracic back sprain.^[10]

On January 27, 2015, the employee was examined by Dennis Sollom, M.D., regarding her left arm conditions.  The employee described left arm pain at 3 to 4 on a scale of 10.  Dr. Sollom diagnosed left rotator cuff tendinitis, myofascial pain and dysfunction syndrome, and De Quervain tendonitis of the left wrist.  Dr. Sollom prescribed occupational therapy.^[11]

On February 5, 2015, Dr. Sheldon conducted a follow-up examination of the employee and noted the employee’s symptoms as ongoing headaches, post-concussive syndrome, aggravation with severe anxiety, and suicidal thoughts.  Dr. Sheldon attributed the symptoms to a closed head injury involving a work-related accident.  Regarding the ongoing left shoulder and left arm condition, Dr. Sheldon set work restrictions of 10 pounds lifting or carrying for no more than two hours, and the same for pushing and pulling, no bending, twisting, climbing, or reaching above her shoulder, no squatting or kneeling, dexterous use of hands limited to no more than 4 hours, and sitting for up to 6 hours.  The work restrictions were set for eight weeks.  Dr. Sheldon also renewed his referral of the employee to a psychologist.  Dr. Sheldon renewed the prescription for verapamil to address the employee’s headaches.  He also coordinated the employee’s occupational therapy to address her ongoing left shoulder and left arm conditions.^[12]

On February 9, 2015, Dr. Hauge examined the employee and assessed the employee with no improvement in her cognitive ability and some reduction in cognitive speed and flexibility.  Dr. Hauge, using the Beck Depression Inventory, described the employee’s emotional status as deteriorated with severe symptomology.  Dr. Hauge assessed the employee’s condition as being the direct result of the employee’s post-concussive syndrome.  Dr. Hauge maintained that medication therapy and psychological intervention were reasonable and necessary to treat the employee’s medical condition.  Dr. Hauge indicated that the employee could not return to work due to the effects of stress.  (Employee’s Exhibit F.)

On February 17, 2015, Sarah Boerboom, MOTR/L conducted an occupational therapy evaluation of the employee.  The employee reported that she experienced no pain while her left arm was at rest, but that it could reach 4-6 of 10.  Grip testing showed only 30 pounds of pressure on the left, compared to 45 pounds right.  A four-week program was initiated to improve the employee’s left arm condition, increase functionality, and reduce pain.^[13]

On February 19, 2015, the employee was examined by Kenneth Stone, Psy.D.  Dr. Stone applied cognitive behavioral therapy to address the employee’s anxiety and panic attacks.  Dr. Stone assessed the employee as suffering from depression, secondary to her panic attacks.  Dr. Stone focused on breathing and muscle relaxation exercises to address the employee’s anxiety problems.^[14]  At a follow up meeting on March 18, 2015, Dr. Stone assessed the employee’s cognitive functioning as average.^[15]

On March 17, 2015, the employee was examined again by Dr. Sollom. The employee described left arm pain at 3 to 4 of 10.  Dr. Sollom diagnosed left rotator cuff tendinitis/tendinosis with chronic left shoulder pain, chronic left elbow pain (tennis elbow), and chronic left wrist pain.  A surgical consult was arranged for the left wrist and possibly left shoulder.^[16]  Dr. Sheldon conducted a follow-up examination of the employee on this date and he assessed the employee as improved 10-20% from her post injury status.  Dr. Sheldon described the employee as unable to drive and unable to work due to headaches and the left shoulder condition.^[17]

On March 24, 2015, Dr. Hauge examined the employee and noted no evidence of language deficit or other symptoms of confusion.  The employee described improvements in cognitive remediation through Onward Therapy.  Dr. Hauge noted that the employee described ongoing anxiety and emotional distress.  Dr. Hauge recommended continued therapy to address the symptoms he ascribed as caused directly by the employee’s concussion.  Dr. Hauge indicated that the employee could not yet return to work, but was “moving in that direction.”^[18]

On March 28, 2015, nearly six months after the work injury, the employee was examined by Paul Arbisi, Ph.D., L.P., ABAP, ABPP, for an independent psychological examination (IPE) on behalf of the employer and insurer.  Dr. Arbisi, a psychologist, reviewed the employee’s ambulance records and some medical and psychological treatment records.^[19]  Dr. Arbisi did not view the video of the employee’s October 7, 2014, work injury.  Dr. Arbisi administered the MMPI-2 Restructured Form (“MMPI-2 RF”) to the employee and scored the results.  Dr. Arbisi noted that the employee had been prescribed Zoloft in 2007 and had been described as experiencing lack of focus, fatigue, hypertension, and hyperthyroidism at that time.  Subsequently, the employee had been prescribed Xanax, taken on an as needed basis as recently as 2014.  In his review of the medical records following the October 7, 2014, work injury, Dr. Arbisi described Dr. Sheldon’s assessment of post-concussive syndrome as “mistakenly diagnosed.”^[20]

Dr. Arbisi observed no deficits in the employee’s speech or thought processes.  Dr. Arbisi interpreted the employee’s scores on the MMPI-2 RF to demonstrate non-credible reporting of cognitive and memory problems.  Dr. Arbisi based his assessment in part on the employee not reporting any alteration of consciousness until October 23, 2014.  Dr. Arbisi opined that there was no evidence that the employee sustained a concussion or significant physical injury in the October 7, 2014, work injury and no evidence that the incident was of sufficient magnitude to result in depression or anxiety.  The employee described nightmares of being on a bus involved in an accident, but Dr. Arbisi noted this as not describing nightmares associated with the actual October 7, 2014, work injury.^[21]  Dr. Arbisi ascribed the employee’s depression and anxiety to pre-existing conditions and maintained that she was not accurately describing her medical history to her care providers or in the IPE.  Dr. Arbisi opined that there was no impediment to the employee returning to work based on an assumption that her blow to the head was “quite mild,” and no need for psychiatric or psychological care as a result of the October 7, 2014 work injury. ^[22]

On April 23, 2015, the employee underwent an IME conducted by David Carlson, M.D.  Dr. Carlson reviewed the circumstances of the employee’s injury and noted that there was no loss of consciousness by the employee.  Dr. Carlson reviewed the employee’s treatment for concussion or traumatic brain injury, psychological care, and treatment for her left upper extremity.  Dr. Carlson conducted a physical examination of the employee and noted some tenderness in the left trapezius and the left shoulder subacromial space, but no swelling or spasm in those areas.  The results were similar for the examination of the employee’s left elbow and left wrist.  The employee displayed no range of motion limitations.  Dr. Carlson opined that the employee had sustained a contusion to her left arm resulting in a mild case of De Quervain’s tendonitis and tenosynovitis in her left wrist, mild lateral epicondylitis in her left elbow, and a contusion and sprain of her left shoulder.  Dr. Carlson also opined that the employee had a mild post-concussive syndrome which had resolved.  Dr. Carlson opined that there were no restrictions or limitations on the employee that would prevent her from full-time work.  As to reasonableness of treatment, Dr. Carlson opined that the employee would benefit from the recommended four weeks of physical and occupational therapy that had been prescribed in February 2015.  Dr. Carlson opined that the employee was at MMI for her shoulder as of the date of the examination.  Dr. Carlson also opined that the employee would reach MMI for her wrist six weeks following a recommended cortisone injection.  The IME report of Dr. Carlson was issued on May 18, 2015.^[23]

On May 18, 2015, Dr. Sheldon provided a narrative report on behalf of the employee.  Dr. Sheldon noted that the employee’s anxiety that preexisted the October 7, 2014, work injury had been in remission.  Dr. Sheldon based this conclusion on his examination of the employee on August 5, 2014, and the absence of any significant anxiety issues at that time.  Dr. Sheldon opined that the work injury appeared to be the proximal triggering factor for the employee’s current anxiety problems.^[24]

On May 25, 2015, Dr. Hauge provided a narrative report on behalf of the employee.  Dr. Hauge opined that the employee’s symptoms were consistent with a concussive injury on October 7, 2014, that resulted in impairment through headaches and impairment of cognition and memory.  Dr. Hauge opined that the cognitive remediation, psychiatry, and psychology services that the employee received were appropriate for care of the employee’s condition.^[25]

On June 12, 2015, Dr. Hauge again examined the employee.  The employee did not display signs of confusion or impaired cognition.  The employee also showed a lessening of emotional distress.  Dr. Hauge attributed some of the employee’s “emotional upheaval” to legal and insurance issues.^[26]

On June 18, 2015, Dr. Arbisi provided a supplemental report.  Dr. Arbisi repeated his earlier opinions regarding the employee’s credibility based on the MMPI-2 RF results.  Responding to the opinions of Dr. Sheldon and Dr. Hauge, Dr. Arbisi maintained that the employee “could not have incurred a head injury, let alone a traumatic brain injury, since she did not suffer any alteration in consciousness.  Consequently, she could not have incurred post-concussive syndrome.”  Dr. Arbisi maintained that had the employee suffered such an injury, the injury would have completely resolved within four to six weeks.  Dr. Arbisi based this opinion on “longitudinal studies of sports-related concussions conducted by Michael McCrea, Ph.D., A.B.P.P., -C.N.”^[27]

The employer and insurer admitted the October 7, 2014, work injury and paid benefits, including TTD.  Subsequently, the employer and insurer filed a Notice of Intent to Discontinue (NOID) regarding temporary total disability benefits.  The petition was denied.   The employer and insurer filed a request for formal hearing on March 26, 2015.  The employee filed a Medical Request on May 5, 2015.  The employer and insurer filed a Petition to Discontinue Benefits on June 9, 2015.  All pleadings were consolidated for hearing before a compensation judge and the matters were heard on July 13, 2015.

In his Findings and Order, dated August 7, 2015, the compensation judge relied upon the opinion of Dr. Arbisi in finding that the employee did not sustain a concussive injury as a result of the October 7, 2014, work injury.  The judge, regarding such an injury to the employee as being based upon the employee’s subjective statements, rejected the concussive injury opinions of all of the treating providers as well as the IME of Dr. Carlson.  The judge did accept the opinion of Dr. Carlson regarding the employee’s left upper extremity injury.  The left arm treatment expenses were found to be necessary and reasonable through the date of the hearing.^[28]  The judge granted the discontinuance of TTD payments effective after July 13, 2015.  The judge denied all treatment expenses for emotional and/or psychological conditions.  In his memorandum, the judge explicitly relied on the opinion of Dr. Arbisi in assessing the credibility of the employee and “absence of any report of unconsciousness or altered consciousness at the time of the bus incident.”  The employee appeals the findings regarding the nature of the October 7, 2014, work injury, the denial of medical benefits, and discontinuance of TTD benefits.

The employee asserts that the compensation judge erred by ignoring “overwhelming evidence and controlling regulations” in finding that the employee did not sustain a concussion in the October 7, 2014, work injury.  The employee also contends that the opinion of Dr. Arbisi lacks foundation and should have been disregarded by the judge.  Regarding the denial of TTD benefits after July 13, 2015, the employee contends that this decision is not supported by evidence in the record.  The employer and insurer contend that the judge’s findings were supported by substantial evidence and that Dr. Arbisi’s opinion has adequate foundation.

As a threshold matter, the employer and insurer moved to dismiss the appeal as violating Minn. R. 9800.0900, subp. 1, as the employee’s appellant brief was filed and served one day late.  Counsel for the employee acknowledged the lateness of the filing, but asserted that the sanction of dismissal has only been applied when a moving party has shown prejudice.

This court has previously held that where a brief is late by a single day and the complaining party has not shown prejudice, dismissal is an inappropriate remedy.^[29]  The employer and insurer have offered no evidence that it was prejudiced by the delay in receiving the pleading.  Mere lapse of time will not justify dismissal of an appeal for failing to file a timely brief where the filing requirement is procedural, not jurisdictional.^[30]  The respondent’s motion to dismiss is denied.

On appeal, the factual determinations of a compensation judge based on the choice between expert opinions is typically affirmed, “so long as the accepted opinion has adequate foundation.”  Smith v. Quebecor Printing, Inc., 63 W.C.D. 566, 573 (W.C.C.A. 2003), summarily aff’d (Minn. Aug. 15, 2003) (citing Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985)).  Proper foundation is a necessary element to accept a medical opinion.  The Minnesota Supreme Court’s precedent in this area was summarized by this court as follows:

In this matter, the compensation judge relied on the opinion of Dr. Arbisi, a licensed psychologist, not a medical doctor.  The scope of practice for a licensed psychologist extends to the diagnosis and treatment of “the psychological aspects of physical illness or condition, accident, injury, or disability.”  Minn. Stat. § 148.89, subd. 5(4) (emphasis added).  In our view, the existence of a concussion is a physical condition, not a psychological one.  The existence of a concussion is the subject of a medical diagnosis, not a psychological one.  The record lacks any evidence that Dr. Arbisi has any experience in diagnosing or treating concussions.^[32]   Absent such a showing, Dr. Arbisi lacks the competence to render an opinion that may be relied upon by the judge as to the existence of a concussion arising out of the October 7, 2014 work injury.^[33]

In addition to lacking competence to opine on a medical diagnosis of concussion, Dr. Arbisi’s factual foundation for his conclusions is inadequate.  Dr. Arbisi did not see the video that captured the incident on the bus on the date of injury.  The video shows the employee’s fall into the stairwell with significant velocity head first caused by the sudden stop of the school bus.  The employee visibly held her head in the immediate aftermath of the accident.  The bus driver carefully assisted the employee as she moved to a seat, extending his arms out in a protective fashion.  The employee’s coworkers prevented her from continuing to work and instead called an ambulance.  The employee was lying on the floor of the ISD’s transportation center when the paramedics arrived.  These actions were taken because the employee appeared less than coherent in conversation with them and the coworkers sensed that something was wrong.

The employee sought follow-up medical care in the days following the injury due to continued headaches and cognitive difficulty regarding speech.  Dr. Sheldon observed sufficient symptoms to diagnose post-concussion syndrome at a follow-up appointment one week later on October 14, 2014.  The employee exhibited dark nasal discharge beginning on October 18, 2014, that lasted several days.  Contrary to these facts, Dr. Arbisi’s opinion maintains that the employee “denied … that she suffered any altering, clouding, or loss of consciousness” until October 23, 2014.  (Employer’s Exhibit 3, at 15.)

The judge’s choice of an expert is not upheld where the facts assumed by the expert are not supported by the evidence.  Nord v. City of Cook, 360 N.W.2d 337, 342-3, (Minn. 1985)(citing Klapperich, 281 N.W.2d 675, 31 W.C.D. 641; McDonald v. MTS Sys. Corp., 43 W.C.D. 83 (W.C.C.A. 1990), summarily aff’d (Minn. July 13, 1990)).  Dr. Arbisi’s contention that the employee denied altered consciousness until October 23, 2014, is expressly contradicted by the employee’s medical records.  The actions of the employee’s coworkers reflect the severity of the employee’s injury and the degree to which her cognitive functioning appeared impaired in the aftermath of the accident.  The assumed factual basis underlying Dr. Arbisi’s opinion is sufficiently at odds from the actual incident so as to constitute a basis for concluding that he lacked an adequate foundation for that opinion.

Absent Dr. Arbisi’s opinion, the record in this proceeding overwhelming supports the conclusion that the employee suffered from post-concussive syndrome.  The medical opinion of the treating physician Dr. Sheldon and the IME of Dr. Carlson support the conclusion that the employee suffered from post-concussive syndrome arising out of the October 7, 2014, work injury.  The compensation judge’s findings to the contrary are reversed.  The judge’s findings denying payment for medical and psychological treatment arising out of the employee’s post-concussive syndrome are vacated, and this matter is remanded for further proceedings regarding those benefits.

The medical record is clear that the employee suffered both a concussion and post-concussive syndrome arising out of the October 7, 2014 work injury.  The existence of a physical injury in the nature of a concussion and post-concussive syndrome is established and no further evidence need be taken on that issue on remand.  However, there may be issues related to the reasonableness and necessity of any particular care provided to cure and relieve the employee of the effects arising out of that physical injury.  On remand, the judge is directed to address any such issues in light of the employee’s established physical injury of concussion and post-concussion syndrome.

The employee maintains that the denial of TTD past July 13, 2015, was not based on substantial evidence in the record.  We disagree.  While the findings and order lack an explanation of why the date of the hearing was significant regarding the discontinuance of TTD, the compensation judge relied on the medical opinion of Dr. Carlson regarding the employee’s left upper extremity.  Dr. Carlson opined that as of April 23, 2015, the employee was able to return to work without restrictions.  Dr. Carlson also opined that the last effects of the employee’s left wrist injury would be addressed within six weeks after a cortisone injection.  The hearing date was a little over six weeks after the IME.  The substantial evidence of record supports the payment of TTD to the date of hearing.^[34]

As the finding of no concussive injury is reversed, the conclusions regarding denial of payment for associated psychological and emotional treatment are vacated as well.  As a result, there may be an issue regarding continuation of TTD after July 13, 2015, arising from those conditions.  As this matter has been remanded for further proceedings regarding payment of medical and psychological care for the effects of the October 7, 2014, work injury, so too the issue of TTD benefit eligibility after July 13, 2015, may be addressed, if deemed appropriate.