EVIDENCE – MEDICAL RECORDS; CAUSATION - MEDICAL TREATMENT. Substantial evidence, including independent medical opinion, supports the compensation judge’s conclusion that the period of disability from work at issue was not causally related to the employee’s work injury.
EVIDENCE - EXPERT MEDICAL OPINION. The compensation judge’s reliance on expert medical opinion that does not accurately describe the employee’s symptoms as set forth in chiropractic records is not unreasonable where the expert medical opinion relies on the history of symptoms provided by the employee and in other medical records.
PRACTICE & PROCEDURE – MATTERS AT ISSUE. Failure of the appellant to discuss an issue in the appellant brief that was raised in the Notice of Appeal supports a conclusion that the issue was waived under Minn. Rule 9800.0900, subp. 1.
Compensation Judge: Kirsten M. Tate
Attorneys: James A. Reichert, James A. Reichert, LLC, Minneapolis, Minnesota, for the Appellant. Timothy P. Jung, Lind, Jensen, Sullivan & Peterson, P.A., Minneapolis, Minnesota, for the Respondents.
Affirmed.
GARY M. HALL, Judge
The employee appeals the compensation judge’s determinations that temporary total disability benefits should not be reinstated and that the employee’s Rehabilitation Plan should be terminated. Substantial evidence supports the judge’s factual findings and there is no error of law, therefore, we affirm.
The employee, Linnea Magnuson, treated for anxiety, depression, panic attacks, blurred vision, and sleep apnea with Annie L. Ideker, M.D., since 2011. Beginning in May 2014, the employee experienced dizziness and lightheadedness, and Dr. Ideker treated the employee for these symptoms as well.
On September 26, 2015, the employee was driving an automobile while performing work functions as a personal care attendant for the employer. The employee was stopped in traffic on I-35 and was rear-ended by a vehicle travelling at highway speed. The employee did not strike her head on anything in the automobile accident, but the driver’s side airbag did deploy. The employee was examined by physicians four times over the four-day period following the September 26, 2015, work injury. The diagnoses from those visits were whiplash, cervical strain, and abdominal strain. No neurological deficits or symptoms of concussion or traumatic brain injury (TBI) were reported in these visits.
On September 28, 2015, the employee received treatment from Joel B. Wulff, D.C. Dr. Wulff noted that the employee was complaining of headache, assessed as 8 or 9 of 10. Dr. Wulff noted that “The possibility of concussion cannot be ruled out ….”[1] Dr. Wulff continued to note headache as a symptom throughout treatment notes in October 2015. In November 2015, the employee began reporting photophobia along with continued headaches.
After the first week following the accident, the employee’s work restrictions varied between four and six hours per day.
On October 24, 2015, the employee was examined by Dr. Ideker who noted that the employee’s symptoms were consistent with her pre-existing anxiety condition. Dr. Ideker noted that the employee’s nausea began one week after the September 26, 2015, work injury, was a significant symptom that the employee experienced with anxiety, and that the symptoms coincided with the addition of Mobic (meloxicam, an NSAID) to the employee’s prescriptions. Dr. Ideker diagnosed the employee with generalized anxiety disorder and whiplash. Continued chiropractic treatment and initiating physical therapy was directed. Dr. Ideker discontinued the Mobic prescription.
On November 2, 1015, Dr. Ideker conducted a follow-up examination of the employee. The employee complained of migratory pain and expressed concern over an inability to concentrate, memory loss, and difficulty completing complex tasks. There was no mention of headaches or other physical symptoms involving the employee’s head. Dr. Ideker referred the employee to a neurologist, but also noted “I suspect that her anxiety is still playing a role in this.”[2]
On November 3, 2015, the employee was examined on referral by a neurologist, Paula M. Cotruta, M.D. The history taken at that examination describes the employee’s complaints as including short-lasting headaches (up to one hour) that occur occasionally and do not interfere with her functioning. Dr. Cotruta’s diagnosis was likely postconcussive syndrome and the employee was referred for further treatment.
On December 4, 2015, the employee was examined by a physical medicine specialist, Richard C. Timming, M.D., who noted that the employee complained of headaches affecting both temples if she worked more than four hours, minimal dizziness, nausea, and blurred vision. Dr. Timming diagnosed mild TBI, postconcussion syndrome, and chronic posttraumatic headaches “probable muscle contraction tension type.”[3] Dr. Timming took the employee entirely off work in January 2016.
In April 2016, the employee was examined by an ophthalmologist who diagnosed convergence insufficiency. Prism glasses were prescribed and this corrected the employee’s blurred vision.
On May 5, 2016, the employee underwent an IME conducted by a neurologist, Irfan Altafullah, M.D., on behalf of the self-insured employer. Dr. Altafullah noted that the employee gave a history of headaches beginning five weeks after the September 26, 2015, work injury. Dr. Altafullah diagnosed the employee as having a resolved cervicothoracic strain/sprain, and resolved abdominal and chest contusions. Dr. Altafullah opined that the employee was at maximum medical improvement (MMI), had no work limitations, and no further treatment of any sort was necessary. Dr. Altafullah also concluded that the employee had not suffered a TBI.
The self-insured employer discontinued temporary total disability (TTD) payments, effective June 29, 2016. The self-insured employer also filed a request to discontinue provision of rehabilitation services to the employee. The employee appealed the discontinuance of TTD benefits and the issues were joined for hearing before Compensation Judge Kirsten Tate. The employee and her father were the only witnesses to testify.
The compensation judge relied on the employee’s preexisting history of symptoms, lack of symptoms immediately following the accident, inconsistent symptoms, gradual increase of symptoms despite treatment, and the opinion of the IME, in concluding that the employee was not entitled to reinstatement of TTD benefits and the employee’s rehabilitation plan was appropriately terminated. The employee appealed.
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 contends that the compensation judge erred by relying on the IME opinion of Dr. Altafullah because that opinion was based on facts contradicted by the employee’s medical record. We disagree and affirm the decision of the compensation judge.
The compensation judge identified the evidence relied on in denying the employee’s claims as: 1) the employee’s preexisting history of symptoms; 2) the lack of TBI symptoms immediately following the work injury; 3) the treating provider’s opinion that the employee’s symptoms arose from her preexisting anxiety condition; 4) a lack of consistent symptomology by November 2015; 5) the employee’s subsequent reporting of symptoms that were inconsistent with normal symptomology; and 6) Dr. Altafullah’s IME opinion.
All of the evidence relied on by the compensation judge required the assessment of conflicting evidence that was capable of supporting more than one conclusion regarding the employee’s condition. In such cases, the standard to be applied is clear:
When the WCCA reviews a compensation judge’s findings of fact, it will affirm those findings unless they are “clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.” Minn. Stat. § 176.421, subd. 1(3) (2004); see also Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 61 (Minn. 1984). Although the WCCA is required to look at all the evidence, it must give due weight to the compensation judge’s opportunity to evaluate the credibility of the witnesses and must uphold findings based on conflicting evidence or evidence from which more than one inference might reasonable be drawn. Id. at 59-60.[4]
The evidence of TBI, upon which the employee based the entirety of her claim for benefits, is conflicting in the employee’s own medical records and the diagnosis of her treating physicians. As the compensation judge resolved these conflicts against the employee and that determination is supported by substantial evidence, this court must affirm the decision.
In Schuette v. City of Hutchinson, 843 N.W.2d 233, 237 (Minn. 2014), the Minnesota Supreme Court set out the standard for reliance on the opinion of an IME as follows:
In weighing medical evidence, a compensation judge has the discretion as the trier of fact to choose between competing and conflicting medical experts’ reports and opinions. Ruether v. State, 455 N.W.2d 475, 478 (Minn. 1990). Only when the facts assumed by the expert in rendering an opinion are not supported by the evidence will we reverse. Nord v. City of Cook, 360 N.W.2d 337, 342-43 (Minn. 1985).
The employee points out that the IME opinion of Dr. Altafullah states in part, “[the employee] had no symptoms indicating that she sustained a TBI, in the days and weeks following the motor vehicle accident in question.”[5] The employee listed the notations throughout the medical record where the employee identified headaches and other symptoms, beginning the day after the September 26, 2015, work injury. The employee relies on this inconsistency to assert that the compensation judge’s decision is not supported by substantial evidence. The self-insured employer responded that Dr. Altafullah had adequate foundation for his opinion as he stated that he had read the employee’s medical records.
The employee’s chiropractic record contains symptoms, primarily headaches, beginning the day after the work injury, that are consistent with concussion and TBI. However, the employee’s records from medical doctors varies significantly from the chiropractic record. The employee’s reporting of symptoms, particularly headache, is absent from the physicians’ records until November 3, 2015, and the severity and duration of symptoms is completely at odds between the two sets of records. Further, the compensation judge explicitly relied upon accurate information in the employee’s medical record in arriving at the decision in the Findings and Order. Additionally, the IME report indicates that in relating her history of symptoms, the employee described her headaches as beginning five weeks after the September 26, 2015, work injury, which is consistent with the medical records and contradicts the chiropractic records. None of the claimed inconsistencies are sufficient to overcome the deference to be afforded the compensation judge’s choice of expert in this matter.
The employee’s Notice of Appeal identified the denial of rehabilitation benefits as an issue on appeal. There was no mention of an issue regarding the termination of the employee’s rehabilitation plan in the employee’s Appellate Brief. The self-insured employer maintained that the issue was waived. The employee made no mention of any issue regarding rehabilitation in the Reply Brief. Under these circumstances, failure to brief the issue constitutes a waiver of that issue pursuant to Minn. R. 9800.0900, subp. 1.
[1] Ex. D.
[2] Ex. 6.
[3] Employee’s Ex. E.
[4] Varda v. Northwest Airlines Corp., 692 N.W.2d 440, 443 (Minn. 2005).
[5] Ex. 1, at 10.