JUNE 5, 2017

No. WC16-6013

PRACTICE & PROCEDURE – ADEQUACY OF THE FINDINGS. That the compensation judge did not cite to specific diagnoses made by the employee’s treating physicians is not an indication that the compensation judge failed to address the claims of the employee or all questions of law and fact, as required by Minn. Stat. § 176.371.

EVIDENCE – EXPERT MEDICAL OPINION. Arguments regarding the competency of a witness goes to the weight of the evidence and not to admissibility when no objection is made to the admission of the expert’s opinion at hearing.

    Determined by:
  1. Gary M. Hall, Judge
  2. David A. Stofferahn, Judge
  3. Deborah K. Sundquist, Judge

Compensation Judge: Adam S. Wolkoff

Attorneys: Charles M. Cochrane, Cochrane Law Office, P.A., Roseville, Minnesota, for the Appellant. Jay T. Hartman, Heacox, Hartman, Koshmrl, Cosgriff, Johnson, Lane & Feenstra, P.A., St. Paul, Minnesota, for the Respondents.




The employee appeals from the compensation judge’s denial of his claim for wage loss and vocational rehabilitation benefits upon determining that the employee’s work injury was temporary and had resolved. We affirm.


The employee, Jerald Cochran, was employed as a pharmacy technician for the employer, Target Stores, which is self-insured for purposes of workers’ compensation liability and with claims administered by Sedgwick Claims Management Services. On November 12, 2015, the employee sustained an injury to his head, which he struck on the underside of a countertop while resuming a standing position. The employee suffered a laceration, severe headache, some confusion, but no loss of consciousness. He testified that he felt disoriented and confused. Co-workers testified to having heard the sound of the employee’s head impacting the countertop. The employee continued to work for another approximate two hours until the end of his shift. He also worked his entire scheduled shift the following day.

The employee was first seen related to this incident on November 15, 2015, at Hennepin County Medical Center (“HCMC”). He presented in the emergency department with complaints of headache, neck pain, poor sleep, and some photophobia. The chart states that he had denied anticoagulation, nausea, vomiting, changes in vision, blurry vision, loss of consciousness, chest pain, and trouble breathing. He was considered to be neurologically intact, and was referred to the Traumatic Brain Injury Clinic (“TBI Clinic”) for a concussion evaluation. According to the employee, he was taken off of work at that time and has since not been released to return to work. The employee then underwent a CT scan and brain MRI, which were interpreted as normal with benign findings.

Upon referral, the employee was seen at the TBI Clinic on November 27, 2015. He was assessed with a mild traumatic brain injury as a consequence of the November 12, 2015, work injury. He continued to complain of neck pain, and underwent acupuncture and physical therapy. X-rays were taken and showed no abnormality.

On January 11, 2016, the employee submitted to a psychiatric evaluation for mild symptoms of depression, anxiety, and worry about his future functioning and return to baseline. He began psychological treatment with Dr. David Thompson at Integral Psychotherapy. On January 27, 2016, the employee underwent a neuropsychological evaluation. It was recommended that the employee address his symptoms of depression and anxiety, but the evaluation was otherwise within normal limits and “revealed no residual cognitive sequelae of the mild TBI he sustained on November 12, 2015.” It was also noted that the employee did not have cognitive deficits that would interfere with a return to work. The employee disagreed with the testing and was dissatisfied with the care he had received at HCMC. He then requested and obtained a referral to Noran Clinic, where he was first seen by Dr. John Damergis on April 12, 2016. According to Dr. Damergis, the employee’s neurologic examination was normal. He referred the employee to the Courage Kenny Institute for mental health counseling.

On May 23, 2016, the employee was first seen at Courage Kenny Institute by Dr. Kyle Harvison upon Dr. Damergis’s referral. In his June 8, 2016, report to Dr. Damergis, Dr. Harvison noted having reviewed the January 2016 neuropsychological testing and the employee’s normal results. He also noted the normal neurological examination of Dr. Damergis from April 2016. Dr. Harvison thought it unlikely that the employee was suffering from persisting neurological dysfunction, and he recommended that the employee’s treatment plan “move away from brain damage as the organizing theme for his symptoms.” The employee was receiving occupational therapy, as well as individual therapy, with Dr. David Lund at the Courage Kenny Institute.

During the summer of 2016, the employee also continued to treat with Dr. Damergis. On June 30, 2016, Dr. Damergis noted that he did not believe there was evidence of neurologic damage, though the employee required ongoing and more aggressive management of his depression and anxiety. On July 14, 2016, Dr. Damergis opined that the employee was unable to return to work as a pharmacy technician due to post-concussive symptoms of headaches, depression, anxiety, insomnia, and nightmares.

In August 2016, Dr. Damergis issued a narrative report upon request by counsel for the employee. In his identical reports dated August 11 and 30, 2016, Dr. Damergis outlined his care for the employee, specifically, that he felt the employee had suffered a mild concussion as a result of the November 12, 2015, work injury, and post-concussive symptoms including insomnia, depression, cognitive difficulties, headache, and visual disturbances. He felt that the employee’s ongoing cognitive difficulties were related to depression and anxiety and noted that imaging and testing revealed no evidence of injury related to traumatic brain injury. It was Dr. Damergis’s opinion that the employee is unable to work due to his ongoing depression and anxiety, and he recommended that the employee continue to treat and manage those symptoms.

Also submitted into evidence were written responses to questions posed by counsel for the employee from Drs. Lund and Harvison. Both physicians indicated that the employee sustained a concussion and post-concussive symptoms as a result of the November 12, 2015, work injury, and that he required ongoing psychotherapy treatment and work restrictions related to the same.

On February 29, 2016, the employee was seen for an independent medical examination by Dr. James Allen at the request of the self-insured employer. Dr. Allen obtained a history from the employee, reviewed medical records, and conducted an examination. It was the opinion of Dr. Allen that the employee’s November 12, 2015, work injury was temporary in nature and would have resolved within two weeks of the injury’s occurrence. He noted that the employee suffered an abrasion and post-traumatic headaches, which would have resolved within a few days. He believed the employee was over-evaluated and over-treated. He also noted the employee’s own research into his condition and the negative impact that has had on his recovery, despite reassurances from his treating physicians that he was not severely injured. Dr. Allen did not assign any permanency, declined to provide restrictions, and considered any treatment beyond the initial evaluation at HCMC to have been not reasonable or necessary. Upon review of additional records at a later date, Dr. Allen issued two additional reports and reaffirmed his opinion that there was no indication of a serious head injury.

The self-insured employer admitted the employee’s injury and paid temporary total disability benefits, paid medical benefits, and provided medical management with a QRC. Based upon the report of Dr. Allen, the self-insured employer filed to discontinue benefits on March 9, 2016. The self-insured employer also filed a rehabilitation request seeking termination of the rehabilitation plan. Following an administrative conference on these consolidated filings, the employee’s benefits were discontinued and the rehabilitation plan was terminated. The employee filed an objection to the discontinuance, as well as a request for formal hearing, which were heard by Compensation Judge Adam Wolkoff on September 9, 2016.

At hearing, presented as issues for resolution by the compensation judge were the employee’s entitlement to temporary total disability benefits, and entitlement to vocational rehabilitation services. By Findings and Order dated September 22, 2016, Judge Wolkoff denied the employee’s claims, finding that the November 12, 2015, work injury was temporary and had resolved. The employee appeals.


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).


The employee appeals from the compensation judge’s denial of his claim for temporary total disability benefits and vocational rehabilitation services, relying on two arguments. First, the employee asserts that the compensation judge erred in failing to specifically address the alleged psychological consequences of his work injury. Second, the employee argues that the compensation judge’s reliance on the opinions of Dr. Allen was in error because he was not qualified to give those opinions, and those opinions lacked foundation. We disagree and affirm the findings of the compensation judge.

1.   Adequacy of the Findings

The employee cites as error that no specific finding was made regarding the employee’s claim that he was entitled to wage loss benefits as a result of a psychological injury suffered on November 12, 2015. This argument is based upon what the employee identifies as a failure of the compensation judge to mention the diagnoses and work restriction recommendations made by Dr. Harvison and Dr. Lund. The self-insured employer argues the compensation judge adequately addressed the employee’s psychological claim as it was included in the findings regarding the nature and extent of the overall injury. In the alternative, the self-insured employer points to various pleadings and the hearing transcript in support of its argument that the employee did not make a claim for a consequential psychological injury and the compensation judge was not, therefore, required to address a consequential injury claim, and further argues that no causation opinion was presented to support his burden of proof on a consequential injury claim.

Based upon consideration of the compensation judge’s findings and supporting memorandum in their entirety, it is clear that that he carefully reviewed the evidence submitted by the employee, including his psychological treatment records, narrative reports, and completed questionnaires. The judge outlined various dates of treatment and from a multitude of providers, noted diagnoses made by numerous medical providers, and provided a detailed list of evidence that, coupled with the opinions of Dr. Allen, he relied upon in concluding that the employee’s head injury sustained on November 12, 2015, was temporary in nature and had resolved. Furthermore, a compensation judge is not required to refer to every piece of evidence introduced at hearing. See Regan v. VOA Nat’l Housing, 61 W.C.D. 142 (W.C.C.A. 2000). Whether the judge incorporated into his findings the specific statements of Dr. Harvison and Dr. Lund identified in the appellant’s brief is not an indication that he failed to consider that evidence, nor is it an indication that the compensation judge failed to adequately address the employee’s psychological treatment and alleged condition.

We conclude that the compensation judge’s findings in this matter comply with Minn. Stat. § 176.371 and its requirement that all questions of law and fact submitted for consideration be decided, and that substantial evidence in the record supports the compensation judge’s conclusion that the employee’s work injury was temporary in nature and had resolved. Hengemuhle, supra, 358 N.W.2d at 59.

2.   Expert Opinion of Dr. Allen

The employee argues that the compensation judge’s reliance on the opinions of Dr. Allen was in error, because Dr. Allen’s opinions lacked foundation in that he made comments about, what he considered to be, a trend of over-diagnosis of concussions, and because he was not qualified to offer an opinion with regard to cognitive and psychological problems.

Dr. Allen submitted three separate reports in this matter, the latter two completed following his review of additional and more recent medical records. Not only did Dr. Allen review and make detailed notes regarding the employee’s medical records, he completed an examination of the employee and recorded a history taken from the employee. This is sufficient to establish foundation for an expert opinion. Scott v. Southview Chevrolet Co., 267 N.W.2d 185, 188, 30 W.C.D. 426, 430 (Minn. 1978). The employee stated concerns about Dr. Allen’s expression of his personal belief that the HCMC TBI Clinic has an incentive to over-diagnose and over-treat head injury patients, and Dr. Allen’s mention of a recent conference he had attended where speakers expressed their view that concussions were being over-diagnosed and over-treated. There is no evidence, however, that the compensation judge relied upon those comments specifically when determining that the opinions of Dr. Allen were more persuasive than the opinions of the employee’s treating physicians. The opinions of Dr. Allen are adequately founded, and pursuant to Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985), we will not disturb the compensation judge’s choice of expert in this case.

The employee also alleges that Dr. Allen was not qualified to give his opinions. The competency of a witness to provide an expert opinion “depends upon both the degree of the witness’ scientific knowledge and the extent of the witness’ practical experience with the matter which is the subject of the offered testimony.” Reinhardt v. Colton, 337 N.W.2d 88, 93 (Minn. 1983). This issue, however, goes to the weight to be given to the opinion, and not to admissibility. See Ruether v. State, 455 N.W.2d 475, 42 W.C.D. 1118 (Minn. 1990). Further, an objection to the competency of a witness to render an opinion must be made upon admission of the testimony or report. See Willy v. Northwest Airlines Corp., No. WC16-5956 (W.C.C.A. Dec. 14, 2016) (citing Weis v. Clinton Elec. Co., slip op. (W.C.C.A. Oct. 10, 1997)). In this case, the employee did not object to the admission of Dr. Allen’s reports at hearing. As such, this issue is limited to the weight given to that evidence by the compensation judge. The opinions of Dr. Allen are well-founded and competent, and the compensation judge’s reliance on those opinions was not in error. We affirm.