GALEN J. KOLL, Employee/Respondent, v. INDEP. SCH. DIST. 345 and RAM MUT. INS. CO., Employer-Insurer/Appellants, and MILLER CHIROPRACTIC OFFICE, AFFILIATED CMTY. MED. CTR., TWIN CITIES MED. IMAGING, LLC, NAT’L DIZZY AND BALANCE CTR., BLUE CROSS BLUE SHIELD OF MINN., NORAN NEUROLOGICAL CLINIC, MINN. DEP’T OF HUMAN SERVS., and SUBURBAN RADIOLOGIC CONSULTANTS, Intervenors.

WORKERS’ COMPENSATION COURT OF APPEALS
MARCH 16, 2017

No. WC16-5992

TEMPORARY TOTAL DISABILITY – SUBSTANTIAL EVIDENCE. Substantial evidence in the form of well-founded medical opinions, the medical record, and the employee’s testimony supported the compensation judge’s conclusion that the employee was temporarily totally disabled.

TEMPORARY TOTAL DISABILITY; JOB SEARCH. Where the employee was taken off of all work in a second job, only medically released for some form of restructured work in the date of injury job, offered no restructured job, and provided no rehabilitation assistance, substantial evidence supports the compensation judge’s finding that the employee was entitled to continued temporary total disability benefits without a job search.

PRACTICE & PROCEDURE – MATTERS AT ISSUE. Failing to raise a specific issue before the compensation judge limited the scope of the hearing and casual mention during opening statements does not provide adequate notice to the judge that a further issue was to be raised.

    Determined by:
  1. Gary M. Hall, Judge
  2. Patricia J. Milun, Chief Judge
  3. David A. Stofferahn, Judge

Compensation Judge: Kirsten M. Tate

Attorneys: Thomas D. Mottaz, Law Office of Thomas Mottaz, Coon Rapids, Minnesota, for the Respondent. Thomas J. Christensen, Quinlivan & Hughes, P.A., St. Cloud, Minnesota, for the Appellants.

Affirmed.

OPINION

GARY M. HALL, Judge

The employer and insurer appeal the compensation judge’s conclusion that the employee sustained a traumatic brain injury; post concussive syndrome; and neck, mid-back, and low back injuries through his July 13, 2015, work injury. The employer and insurer appeal the employee’s entitlement to temporary total disability benefits, the intervenors’ right to payment, and reimbursement of out-of-pocket expenses. The employer and insurer contend that the compensation judge ignored significant medical evidence and, therefore, her conclusions are not supported by substantial evidence in the record as whole. The employer and insurer also dispute the award of temporary total disability due to the employee’s failure to conduct a diligent job search. We affirm.

BACKGROUND

The employee, Galen Koll, worked as a custodian for the employer, Independent School District No. 345 (ISD 345). The employee also had a second job, human services technician, working part-time nights and weekends for an adult care center in Willmar. On July 13, 2015, the employee was at work for ISD 345 carrying a chair mat when he slipped and fell, striking his head, neck, and back on a tile surface. The employee was examined by the school nurse and immediately transported to the emergency room. The medical notes indicate “No loss of consciousness, nausea, vomiting, double or blurred vision, or other complaint.” CT scans were performed of the head and neck. The employee was diagnosed with head contusion and acute cervical strain. The employee was prescribed pain medication and Flexeril for headache, neck pain, and spasm. (Employee’s Exhibits N and O.)

On July 14, 2015, the employee began treating for the July 13, 2015, work injury with Kathryn Miller, D.C.[1] Dr. Miller’s chart notes of the July 14, 2015, examination indicate that the employee was not mentally clear, that he failed to list family members on the intake form, and the employee was dizzy. The employee exhibited pain and limited range of motion (ROM) in his neck and back. Dr. Miller diagnosed traumatic head injury and sprain/strain to the employee’s cervical, thoracic, and lumbar spine and she took the employee off of all work. The employee continued to treat with Dr. Miller through June 10, 2016. The chart notes of these visits reflect ongoing problems with headaches, dizziness, balance, and neck and back pain throughout the period of Dr. Miller’s treatment. (Employee’s Exhibit K.)

On July 21, 2015, the employee was examined by Steven F. Noran, M.D., on referral from Dr. Miller. Dr. Noran noted that the employee continued to suffer from headaches, difficulty remembering, vertigo, and difficulty walking. Dr. Noran diagnosed traumatic brain injury (TBI) with post-traumatic headaches, post-traumatic vertigo, neck injury with bilateral radiculopathy, and hypertension. Dr. Noran restricted the employee from work at each of his jobs. The employee continued to treat with Dr. Noran through May 24, 2016. Chart notes reflect that the employee exhibited continuing problems with headaches, dizziness, balance, and neck and back pain throughout the period of treatment by Dr. Noran. On May 24, 2016, Dr. Noran indicated that the employee was not at maximum medical improvement (MMI) and Dr. Noran recommended that a qualified rehabilitation consultant (QRC) be assigned to the employee. (Employee’s Exhibit G.) No QRC has been assigned to the employee.

On October 14, 2015, the employee was examined by Edward Rutledge, M.D., at the National Dizzy and Balance Center on referral from Dr. Noran. Dr. Rutledge noted the employee’s description of vertigo attacks every few hours, accompanied by blurred vision, weakness in his extremities, and difficulty walking. Dr. Rutledge diagnosed post-concussion syndrome, unsteadiness on his feet, and peripheral vertigo. Diagnostic testing showed gait abnormalities, central and peripheral vestibular deficit, and asymmetrical hearing loss, all consistent with post-concussive syndrome. Dr. Rutledge ordered physical therapy (PT) to address the employee’s balance problems. (Employee’s Exhibit H.)

On October 14, 2015, the employee was examined by a clinical neuropsychologist, Jerry Halsten, Ph.D., L.P. ABPP-CN. Dr. Halsten conducted a battery of tests on the employee’s hearing, cognitive functioning, memory, and visual-spatial perception. Dr. Halsten’s diagnostic impressions were post-concussive syndrome and anxiety. Dr. Halsten indicated that the employee “may be able to return to work as a custodian, if he makes use of check lists.” Dr. Halsten also provided suggestions such as reducing the time spent at any one work task, and avoiding noise and lights that cause distraction and headaches. (Employee’s Exhibit I.)

On December 15, 2015, Dr. Halsten provided a narrative report of the employee’s care received from Courage Kenny Rehab Associates. Dr. Halsten diagnosed the employee with post-concussive syndrome and anxiety and opined that the employee “may be able to return to work” in some form of limited manner using checklists and gradually increasing in speed of performing tasks. Dr. Halsten recommended delaying any return to work in the adult care facility due to ongoing memory problems and the employee’s responsibilities in distributing medication to residents. Dr. Halsten also recommended following up in six months to assess neurocognitive and neurobehavioral changes. (Employee’s Exhibit I.)

On December 15, 2015, the employee underwent an independent psychological examination conducted by Thomas E. Beniak, Ph.D. Dr. Beniak engaged in a thorough review of the employee’s treatment records and administered testing to assess malingering and cognitive ability. Dr. Beniak opined that “none of the clinical phenomena necessary to diagnose traumatic brain injury were present.” Dr. Beniak opined that the employee did not suffer TBI from the July 13, 2015, work injury, but the employee could have suffered a “minimal concussive injury that did not result in cognitive or psychological/psychiatric consequences.” Dr. Beniak interpreted the employee’s testing results as showing reduced effort and lack of motivation, while not reaching the level of malingering. Dr. Beniak opined that there was no causation of any aspect of the employee’s neuropsychological condition arising from the July 13, 2015, work injury, no permanent partial disability (PPD) rating was appropriate, and none of the neuropsychological treatment received by the employee was necessary or reasonable to treat the work injury. Dr. Beniak opined that there was no need for restrictions and the employee was “perfectly capable of managing all of the duties relating to his vocation.” (Employer’s Exhibit 5.B.)

On January 4, 2016, the employee underwent an independent medical examination (IME) conducted by Frederick T. Strobl, M.D. Dr. Strobl conducted an examination of the employee and opined that he suffered a minimal concussion, if any. Dr. Strobl concluded that the employee: 1) had reached MMI; 2) could return to his date of injury (DOI) employment; 3) required no restrictions; 4) needed no further medical care; and 5) had no ratable PPD. Dr. Strobl opined that the medical care provided to the employee was necessary and reasonable, along with the chiropractic care to the extent of three treatments per week in the first month post-accident, two per week in the second month, and one per week in the third month, with no further treatment after three months. (Employer and insurer’s Exhibit 4.B.) On March 4, 2016, Dr. Strobl updated his IME opinion and indicated that his review of additional information did not change his opinions. (Employer’s Exhibit 4.C.)

On April 26, 2016, Dr. Miller provided a narrative report that related the employee’s forgetfulness, repetition of conversations, and other symptoms on July 14, 2015, and on subsequent visits, in contrast to the employee’s demeanor on visits prior to the July 13, 2015, work injury. Dr. Miller related ongoing observations and presentation of symptoms including cervical, thoracic, and lumbar spine problems that began immediately after the DOI. Dr. Miller opined that the employee’s ongoing post-concussive symptoms and spine conditions arose out of the July 13, 2015, work injury. To the extent that the employee had any preexisting spine problem, Dr. Miller opined that the work injury aggravated and exacerbated that condition. Dr. Miller opined that the employee was not currently able to return to work due to his ongoing dizziness, lack of concentration, and other symptoms arising out of the work injury. (Employee’s Exhibit E.)

On May 27, 2016, Dr. Noran was deposed regarding the employee’s condition. Dr. Noran related his conversations with the employee, including that symptoms of traumatic brain injury were present at the time of the July 13, 2015, work injury. The employee’s diagnoses were traumatic brain injury, postconcussive syndrome, postconcussive neurovascular headaches, vertigo, neck injury, cervical myoligamentous, facet injuries, cervical disk injuries, anxiety, and cognitive issues. As of May 20, 2016, Dr. Noran had kept the employee off of work. Dr. Noran opined that the employee had not yet reached MMI and noted that the employee had not had the assistance of a QRC. Dr. Noran indicated that the employee might be able to undergo a trial return to work, with gradual work hardening. (Employee Exhibit C, at 79-80.) Dr. Noran expressly disagreed with the opinions of Dr. Beniak and Dr. Strobl regarding the nature of the July 13, 2015, work injury, the employee achieving MMI, the need for ongoing treatment, and the employee’s ability to work without restrictions. (Employee Exhibit C, at 27, 34, 53-62.)

On June 2, 2016, John P. Cronin, Ph.D., L.P., M.Pub.Health, provided the results of an independent psychological examination of the employee conducted at the request of the employee’s counsel. Dr. Cronin diagnosed the employee with post-concussive syndrome, Anxiety Disorder NOS, Major Depressive Disorder, and psychosocial and environmental problems. Dr. Cronin opined that the employee did suffer a brain injury and continues to have diminished functioning due to the July 13, 2015, work injury. Dr. Cronin disputed the opinions of Dr. Beniak regarding the employee’s ongoing need for vocational assistance and causation of the employee’s continued need for medical care. Dr. Cronin did not give an opinion on whether the employee had reached MMI. Dr. Cronin agreed with Dr. Halsten’s proposal regarding returning the employee to work through some form of work hardening. (Employee’s Exhibit F.)

On September 24, 2015, the employee filed a Claim Petition. The case came on for hearing before Compensation Judge Tate on June 14, 2016. The issues before the compensation judge were described as: 1) whether the employee suffered work-related injuries in the form of TBI/post-concussive syndrome, and injuries to his cervical, thoracic, and lumbar spine from his fall at work on July 13, 2015; 2) whether temporary total disability (TTD) benefits from the date of injury (DOI) to present and continuing was appropriate; 3) whether payments for medical care by intervenors and one non-intervening provider are appropriately awarded; and 4) whether the employee was entitled to medical mileage. The interests of several intervenors were closed out for nonappearance at the hearing. In opening statements, counsel for the employer and insurer described the issue for hearing before the compensation judge as deciding between the differing medical opinions. (Tr. at 36.) The employee was the only witness at the hearing.

The compensation judge determined that the preponderance of the evidence established that 1) the employee suffered work-related injuries in the form of TBI/post-concussive syndrome, and injuries to his cervical, thoracic, and lumbar spine from his fall at work on July 13, 2015; 2) the employee was temporarily totally disabled from the DOI through the present and continuing; 3) the intervenors claims (with one exception) were reasonable, necessary, and causally related to the July 13, 2015, work injury; and 4) the employee was entitled to medical mileage. Benefits were awarded accordingly. The employer and insurer appealed the July 29, 2016, Findings and Order on August 15, 2016.[2]

STANDARD OF REVIEW

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).

DECISION

The employer and insurer assert that the decision of the compensation judge is not supported by substantial evidence in the record. Specifically, they argue that the compensation judge ignored or mischaracterized evidence supporting the opinions of Drs. Strobl and Beniak regarding the employee’s need for further treatment, ability to work, and reaching MMI. The employer and insurer’s contentions in regard to payment to intervenors and reimbursement of medical mileage arise out of this same issue. We are not persuaded.

The employer and insurer assert that the compensation judge “ignored a majority of the medical evidence through failing to consider the opinions from … two independent medical providers in addition to numerous treating physicians.” In our review of the record, we note that the judge’s findings contain a review of the testimony provided by each of those witnesses. Rather, the employer and insurer object to the weight given that evidence by the compensation judge. The result reached by a compensation judge logically rests on the choice between conflicting expert testimony.

As a general rule, questions of credibility of the witnesses are matters reserved to the finder of fact and reviewed by this court on the basis of the substantial evidence standard. Even v. Kraft, 445 N.W.2d 831, 42 W.C.D. 220 (Minn. 1989). Similarly, this court will not disturb the judge’s choice of medical expert opinion where there is adequate foundation to support it and it is supported by the record. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). Conflicts in medical expert testimony are to be resolved by the compensation judge as the trier of fact. Reuther v. State, Mankato State Univ., 455 N.W.2d 475, 478, 42 W.C.D. 1118, 1123 (Minn. 1990).

1.   Nature of the Work Injury

The employer and insurer contend that the compensation judge erred in finding that the employee suffered work-related injuries arising out of the fall suffered by the employee on July 13, 2015. The absence of symptoms in the emergency room chart notes is identified by the employer and insurer as the reason why the treating providers’ opinions should be disregarded in this matter. The employer and insurer maintain that the employee exhibited no symptoms consistent with a brain injury in the immediate aftermath of the July 13, 2015, work injury. In the evidence we note the observations made by Dr. Miller on the day following the work injury, that the employee was dizzy, forgetful, and not mentally clear. The employee testified regarding the nature and severity of his symptoms. Dr. Noran described his interview with the employee, including a description of the employee’s symptoms, including altered consciousness, in the immediate aftermath of the fall. In light of this evidence, the judge accepted the diagnoses of Drs. Noran, Halsten, and Rutledge as more persuasive than those of Drs. Strobl and Beniak.

The assessment of witness credibility is a unique function of the trier of fact. Brennen v. Brennan, 425 N.W.2d 837, 839-40, 41 W.C.D. 79, 82 (Minn. 1988). Similarly, the probative weight of the evidence is determined by the compensation judge, so long as substantial evidence supports the decision. Krotzer v. Browning-Ferris, 459 N.W.2d 509, 513, 43 W.C.D. 254, 261 (Minn. 1990); Redgate v. Sroga’s Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988). Substantial evidence in the form of the treating providers’ opinions, the employee’s medical record, and his testimony supports the compensation judge’s conclusions regarding the nature and extent of the employee’s injuries, the existence of a traumatic brain injury, and the employee’s continued need for treatment. The compensation judge’s findings regarding the nature and extent of the work injury are affirmed.

2.   Ability to Work

Relying on the opinions of Drs. Strobl and Beniak, the employer and insurer maintain that the employee was able to work and therefore had an obligation to conduct a reasonable job search as a condition for receiving temporary total disability benefits. The employer and insurer contend that its experts were entitled to more weight than the treating physicians on this issue since all the medical opinions are consistent with the employee being fit to return to work. The opinions of the treating providers plainly indicated that the employee would benefit from some form of job restructuring that would allow the employee to return to work on a limited basis, with limited duties and reduced exposure to a bright and loud environment.

An injured employee who is able to work must generally conduct a reasonably diligent job search to establish entitlement to temporary total disability benefits. The burden of proving an adequate job search is on the employee. Redgate, 421 N.W.2d 729. Whether an employee's job search is diligent is a question of fact for the compensation judge to resolve. Bauer v. Winco/Energex, 42 W.C.D. 762, 768 (W.C.C.A. 1989). The determination that an employee made a reasonably diligent search for suitable employment is a question of fact which must be upheld unless manifestly contrary to the evidence. McClish v. Pan-O-Gold Baking Co., 336 N.W.2d 538, 36 W.C.D. 133 (Minn. 1983). Where such a job search would be futile, the lack of a job search only goes to the weight of the evidence as to whether an employee is totally disabled. Scott v. Southview Chevrolet Co., 267 N.W.2d 185, 188-89, 30 W.C.D. 426, 432 (Minn. 1978). The judge can consider the effects of the work injury, the employee’s work history, and the extent of vocational assistance in making this determination. Crocker v. HMS Host Corp., No. WC06-304 (W.C.C.A. June 14, 2007).

The employee remains under significant restrictions that precluded work from his second job and necessitated job restructuring before the employee could return to his custodial job. In the absence of any such restructured job offer by the employer and lacking the assistance of a QRC, there is ample basis in the record for the compensation judge to reasonably conclude that the employee remained totally disabled from employment due to the effects of the work injury. The award of temporary total disability benefits is affirmed.

3.   Maximum Medical Improvement

The employer and insurer argue that the compensation judge did not adequately consider the medical evidence in the record in failing to determine that the employee had reached MMI. Specifically, the IME opinion by Dr. Strobl, the psychological assessment by Dr. Beniak, and the October 14, 2015, evaluation by Dr. Halsten are cited as the evidence demonstrating that the employee reached MMI. The employee pointed out that Dr. Halsten makes no mention of MMI in his report. Dr. Halsten plainly indicated that the employee could expect to experience changes in his neuropsychological condition and, accordingly, scheduled a follow-up appointment.

The employee having reached MMI was not listed as an issue to be determined in the proceeding below. The court notes that in opening statements before the compensation judge each side mentioned MMI one time in passing in reference to physician opinions. The employer and insurer appear to rely on the employee being at MMI in supporting the claim that an award of temporary total disability benefits is not appropriate. That issue was resolved for the purposes of this proceeding with the compensation judge’s determination that the employee was entitled to temporary total disability benefits to the present and continuing.

A compensation judge can address eligibility for benefits that include a necessary element without “expanding the issues” heard in the proceeding. See Carmine v. Rotelcom/Global Crossing, No. WC04-112 (W.C.C.A. July 29, 2004). The failure of the parties to raise MMI as a distinct issue before the compensation judge precludes this court from addressing the issue on appeal. Kulenkamp v. Timesavers, Inc., 420 N.W.2d 891, 894, 40 W.C.D. 869, 872 (Minn. 1988) (basic fairness requires notice and reasonable opportunity to be heard); Lowe v. Alexandria-Peterson d/b/a Pete’s County Mkt., No. WC14-5762 (W.C.C.A. April 15, 2015); Anwiler v. Luoma Egg Ranch, Inc., No. WC14-5719 (W.C.C.A. Oct. 21, 2014); Ounasser v. Golden Living Ctr. Rochester W., No. WC13-5565 (W.C.C.A. Dec. 31, 1998); Wise-Thackery v. Universal Colour Lab, Inc., slip op. (W.C.C.A. Dec. 31, 1998).

4.   Intervenor Awards and Medical Mileage

The employee contends that any appeal of the intervenor awards and the medical mileage award was waived by the employer and insurer by failing to make any argument in the appellate brief on the subject. The employer and insurer responded that the appeal of those items is included in the assertion that the employee reached MMI and is not entitled to temporary total disability benefits, the inference being that there was no need for the treatment at issue. Under the rules of this court, any issue raised in the notice of appeal but not addressed in the appellate brief shall be deemed waived and will not be decided by the court. Minn. R. 9800.0900, subp. 1. Substantial evidence in the record supports the compensation judge’s award of temporary total disability benefits. As the employer and insurer relied on success on the wage issue in its argument, there is no need to address this issue further. The awards to the intervenors and of medical mileage are supported by substantial evidence and those awards are affirmed.



[1] Dr. Miller had been treating the employee periodically for various conditions, shoulders and feet since 2004, headaches in 2009, and neck pain in 2013. Dr. Miller also treated the employee for right side hip and shoulder pain following a fall in July 2013.

[2] On August 16, 2016, the compensation judge issued an Amended Findings and Order, which added a new Finding 20 regarding the objection to intervention by the National Dizzy and Balance Center, new Finding 22 regarding the intervention by ACMC with a zero balance, and new Findings 27 and 28 addressing the interests of those two intervenors. As no party has raised any issue regarding the Amended Findings and Order and the resolution of this appeal is not affected by any of the changes to the July 29, 2016, Findings and Order, this court will not address any potential issues raised by the issuance of the Amended Findings and Order.