BRETT J. ALLEN, Employee/Respondent, v. TRAILBLAZER JOINT POWERS BOARD and MINN. COUNTIES INTERGOVERNMENTAL TRUST S/I, Employer-Insurer/Appellants, and NORAN NEUROLOGICAL CLINIC, Intervenor.

The employer and insurer appeal the judge’s finding that the employee sustained a work-related concussion which resulted in wage loss, medical expenses and need for vocational rehabilitation. Substantial evidence supports the judge’s finding and we affirm.

Brett Allen drove a 17-passenger van for his employer, Trailblazer Joint Powers Board. His job required him to transport passengers in the community. On August 12, 2015, the employee had picked up two passengers. The employee was traveling at about 50 m.p.h.^[1] when a pick-up truck blew through a stop sign and slammed into the van. The van spun 180 degrees, flipped over multiple times, and landed on its side in a soybean field. When the van had come to a halt, the employee checked the passengers amid broken glass and debris. One passenger had been thrown from her seat. The employee attempted to call the employer, but the van radio was dead. He looked for his phone, found it, and called the employer. He kept the passengers calm until help arrived. By the time the employer’s executive manager had arrived, the employee was experiencing a bad headache and soreness in his back and neck.^[2]

The employer instructed the employee to report for a post-accident drug screen. Following the screen, the employee returned to Trailblazer. The employee asked for permission to go to the emergency room to get checked out as he was having a “really bad headache and pain in the neck and shoulders.”^[3]

The employee sought emergency room care at Glencoe Regional Health Services complaining of neck pain provoked by movement and headache pain.^[4] The employee was uncertain whether he had lost consciousness or hit his head in the accident. In clarifying, he later testified that he recalled telling the provider that he did not remember if he lost consciousness or recall whether he hit his head.^[5] Upon examination, there was no evidence of trauma to the employee’s head, no soft spots, bruising, or swelling. The pupils were equal and reactive, the cranial nerves II – XII were intact, and range of motion of the neck was intact. The diagnosis was “tension-type headaches related to muscle spasm.”^[6] The employee was taken off work for the remainder of the week. In a follow-up appointment on August 14, 2015, the employee was released to return to work without restrictions as the cervical strain had resolved.

Aside from driving the passenger van for the employer, the employee also drove race cars for recreational purposes since 1995. The day following the release to return to work without restrictions, the employee felt well enough to race. He testified that he found it difficult to control the car, but came in 5th place. He testified that it was the last time he raced.

Upon returning to work, the employee was told that he was suspended without pay through August 24, 2015. The employer had concluded that the accident could have been avoided by more attentively viewing the intersection before proceeding through it. Thereafter, the employee began examining all intersections more thoroughly before proceeding through them, by looking right to left multiple times. He testified that this movement made him feel worse.^[7]

On August 27, 2015, the employee sought treatment at Glencoe Regional Health Services complaining of severe headaches, dizziness, and dropping things, all of which he attributed to the August 12, 2015, accident. He sought emergency room treatment the next day asking for a “cat scan” due to severe daily headaches, vomiting, and seeing circles of light. Mitchell N. Palmer, M.D. noted that it “appears that he did suffer a concussion and has, in fact, the postconcussive syndrome.”^[8] The employee was taken off work.

Subsequently, the employee was prescribed medication, and underwent physical therapy to control his symptoms. He was referred to Steven F. Noran, M.D., a neurologist, who ordered diagnostic tests, and made referrals to the National Dizzy & Balance Center (NDBC) and Courage Kenny. NDBC ran a number of tests and noted that the employee’s abnormal testing may suggest neurolabyrinthitis vestibular neuritis migraine. However, the notes also described “a lot of aphysiologic findings.”^[9] At Courage Kenny, the employee underwent a neuropsychological examination with Kyle William Harvison, Ph.D. Dr. Harvison reviewed the medical records and CT scan which was negative and an MRI scan which showed a “nonspecific supratentorial white matter changes bilaterally.” Dr. Harvison also administered psychometric tests and concluded that the employee had post-concussive syndrome, noting that the employee also demonstrated some somatic preoccupation.^[10]

Dr. Noran also diagnosed the employee with post-concussive syndrome, and added traumatic brain injury (TBI), post-traumatic neurovascular headaches, ongoing cognitive impairment, paroxysmal hemicrania, and sleep related and mood disorder mostly likely related to the traumatic brain injury. While not proven, Dr. Noran asserted that the employee had probably lost consciousness at the time of the accident.

Aside from the medical records, the employee kept a journal beginning on October 24, 2015, documenting the difficulty he had in daily living with visual symptoms, and migraines so severe that he was unable to do anything until the pain passed.^[11]

The employer and insurer sought medical expert opinions from Thomas E. Beniak, Ph.D. and Irfan Altafullah, M.D. Dr. Beniak reviewed medical records, including Dr. Harvison’s report, and examined the employee. His impression was that the employee’s overall intellectual ability was average. He questioned Dr. Harvison’s testing and conclusions, and determined that there was no neuropsychological diagnosis whatsoever as a function of the accident in question. Dr. Beniak also disagreed with Dr. Noran’s diagnosis of TBI as the employee never struck his head and there was an absence of clinical phenomenon associated with TBI. Dr. Beniak concluded that the employee did not sustain any TBI, closed head injury, or cerebral concussion as a consequence of the August 12, 2015, incident. He assigned no work restrictions, found the employee was at maximum medical improvement (MMI), and had a zero percent permanent partial disability (PPD) rating.

Likewise, Dr. Altafullah, a neurologist, found no evidence of a concussion or TBI. He noted that the employee did not experience any loss of consciousness and had no significant amnesia from the events surrounding the accident. He explained that after trauma, symptoms are generally maximal and it is not likely that symptoms would appear weeks after the injury, and even more unusual for symptoms to progress, which had happened here.

While admitting liability for a neck strain, the employer and insurer denied that the employee sustained a concussion or TBI as a result of the work accident. They sought a discontinuance of the employee’s benefits which was granted effective September 15, 2016. The employee filed an objection to discontinuance and a claim petition alleging wage loss benefits, medical expenses, ongoing vocational rehabilitation, and reserved the issue of retraining.

The matter was heard before Compensation Judge Kirsten Tate on January 9, 2017. In Findings and Order filed on February 23, 2017, Judge Tate found that the employee sustained a work-related concussion on August 12, 2015. She denied the employer and insurer’s request to terminate vocational rehabilitation benefits, she ordered reinstatement of temporary total disability (TTD) benefits, payment of medical expenses, and found that the employee had reached MMI as of December 22, 2016. In explaining the basis for her decision, she noted in the memorandum to the Findings and Order that the employee’s symptom presentation was credible as it was consistent to a variety of healthcare providers. The judge acknowledged that while it was unclear whether the employee had lost consciousness in the accident, the health care providers consistently determined that the employee presented with symptoms of post-concussive syndrome. The employer and insurer appeal.

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(3). 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, 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 evidence or not reasonably supported by the evidence as a whole.” Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

A decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which the Workers’ Compensation Court of Appeals may consider de novo. Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993), summarily aff’d (Minn. June 3, 1993).

On appeal, the employer and insurer argue that substantial evidence fails to support the compensation judge’s decision. They argue that the employee’s subjective symptoms changed throughout the course of litigation with multiple inconsistencies as to when the employee began to feel pain, whether he struck his head, and whether he lost consciousness. They also argue that the judge’s acceptance of Dr. Noran’s opinion constitutes an error of law because Dr. Noran’s opinion was based on a revised and unsubstantiated history of alleged loss of consciousness.

It is within the purview of the trier of fact to choose between conflicting medical expert opinions at the time of hearing. Nord v. City of Cook, 360 N.W.2d 337, 342-43 (Minn. 1985). Where the facts relied upon by the expert are without support, the findings issued by the judge based upon that expert’s opinion, cannot be upheld. Nielsen v. Wheel Service Brake & Equipment, No. WC11-5293 (W.C.C.A. Jan. 20, 2012); Reinhard v. Federal Cartridge Corp., No. WC12-5521 (W.C.C.A. Mar. 18, 2013). The facts relied upon by the expert must also be supported by substantial evidence in the record. While a medical expert need not review every possible fact, the opinions rendered must not be based upon speculation or conjecture. Wenner v. Gulf Oil Corp., 264 N.W.2d 347, 381 (Minn. 1978).

Here, there was sufficient evidence for the judge to have found that the employee did or did not suffer post-concussive disorder. The employer’s medical experts outlined several reasons why the employee’s timing and presentation of symptoms were inconsistent with a post-concussive disorder or TBI. Even the aftermath of the accident where the employee quickly acted to assist his passengers, call his employer and assess the damage could have persuaded the judge that the employee did not suffer a TBI. The employee’s medical expert, Dr. Noran, appears to have inferred that the employee had lost consciousness when that was not conclusive from the record which would constitute a basis to reject his conclusions.

The standard of review in this case is not whether a different outcome could have been arrived at, but whether substantial evidence supports the judge’s findings that the employee suffered a work-related concussion. Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed. Hengemuhle, 358 N.W.2d at 60, 37 W.C.D. at 240. Whether the employee lost consciousness does not appear to be determinative here, and as such, cannot be a basis for overturning the compensation judge’s finding. The compensation judge acknowledged that it was unclear whether the employee lost consciousness. The emergency room note the day of the accident stated that the employee “did not think he lost consciousness.” About two weeks after the accident, the employee returned to the same emergency room complaining of ongoing headache pain and photophobia. It was then that the employee was first diagnosed by Dr. Palmer with post-concussive disorder. While it appears that Dr. Noran may have assumed a loss of consciousness during the employee’s initial examination, he makes no mention of it in the narrative report outlining his expert opinion.^[12] Furthermore, Dr. Noran referred the employee to Dr. Harvison who confirmed that the employee had post-concussion disorder. Dr. Harvison noted that the employee was unsure whether he struck his head. More importantly, loss of consciousness was not referenced in Dr. Harvison’s report.

That the record is unclear as to the loss of consciousness is not dispositive of the diagnosis of post-concussive disorder. The record is unequivocal that the employee suffered headache pain from the time of the work accident forward. The consistent and ongoing diagnosis of post-concussive syndrome from multiple providers was found persuasive by the compensation judge. Because substantial evidence supports the compensation judge’s findings, we affirm.