PAMELA J. UPTON, Employee/Appellant, v. MOTEL 6 and LIBERTY MUT. INS. CO., Employer-Insurer/Respondents.

The employee appeals the compensation judge’s denial of her claims for wage loss benefits, permanent partial disability benefits, and a rehabilitation consultation, based on the judge’s finding that the employee no longer had any disability related to her work-related injury.  We affirm.

On May 26, 2017, Pamela Upton, the employee, sustained work-related injuries when she was physically assaulted while working as a property manager at Motel 6, the employer.  She was seen at an emergency room the next day and was diagnosed with a closed facial fracture and concussion with loss of consciousness, unspecified duration.  On June 1, 2017, the employee was evaluated by Orrin Mann, M.D., who noted that the employee’s post-concussive syndrome had resolved and referred her to a specialist to address the facial fracture.  The employee was initially given work restrictions, but Dr. Mann released her for full-time work without restrictions on June 14, 2017.  The employee continued to work for the employer, but testified that she had difficulty concentrating, which affected her job performance.  The employer terminated her employment on October 15, 2017.  She worked for a Motel 6 franchise for a short time in January 2018, then worked for another employer as a property manager from June 2018 to July 2019.  She testified that she had difficulty performing her job and was afraid while working.  Other than providing childcare for relatives, she has not worked since then but lives independently, drives, shops, and manages her finances.

As a result of the May 26, 2017, incident, the employee claimed a serious traumatic brain injury (TBI), post-traumatic stress disorder (PTSD), concussion, and facial injuries.  The employer and insurer accepted primary liability for the work injury, acknowledging that the employee sustained a mild TBI and facial injuries, but disputed that the employee sustained a serious TBI or PTSD.

In February 2019, the employee was examined by neuropsychologist Rodney Swenson, Ph.D., A.B.N., who indicated that the employee had sustained a TBI as result of the 2017 work injury and recommended a comprehensive neuropsychological assessment.  Dr. Swenson performed this assessment in March 2019 and diagnosed a serious TBI and chronic PTSD, which led to further permanent neuropsychological injury, as a result of the 2017 work injury.  Dr. Swenson assigned a 20 percent permanent partial disability (PPD) rating under Minn. R. 5223.0360, subp. 7.C(2) (able to live independently but requiring supervision with executive function) and a 20 percent PPD rating under Minn. R. 5223.0360, subp. 7.D(2) (mild emotional disturbance present at all times but able to live independently and relate to others), for a combined rating of 32 percent PPD.

Susan McPherson, Ph.D., A.B.P.P., L.P., evaluated the employee at the employer and insurer’s request on June 10, 2019.  Dr. McPherson opined that the employee met the criteria for a mild TBI after the 2017 work injury, but noted that the employee had neuropsychological test results in the average range, no residual cognitive deficits as a result of the 2017 injury, and no evidence of a serious TBI as noted by Dr. Swenson.  She concluded that the employee had reached maximum medical improvement (MMI), needed no further treatment or work restrictions, and had no PPD.  Marvin Logel, Ph.D., L.P., reviewed the employee’s MMPI results and noted that they were suggestive of a somatoform disorder, depressive disorder, and/or anxiety disorder, including PTSD.

In August 2019, the employee was evaluated by psychiatrist Thomas Gratzer, M.D., at the employer and insurer’s request.  Dr. Gratzer diagnosed the employee with pre-existing personality disorder, anxiety disorder, and depressive disorder, and opined that these conditions were not affected by the 2017 injury.  He opined that the employee had some symptoms of PTSD, but that she did not meet the criteria regarding impairment in social or occupational functioning.  Dr. Gratzer further stated that the employee did not require treatment or work restrictions resulting from the 2017 work injury and did not develop any psychiatric difficulties or sustain any PPD as a result of that injury.

The employee’s claim for workers’ compensation benefits was heard by a compensation judge on October 24, 2019.  The compensation judge found that the employee sustained a facial fracture, a concussion, and a mild TBI as a result of the 2017 work injury, relying on Dr. McPherson’s and Dr. Mann’s opinions, but found that she did not sustain PTSD, relying on Dr. Gratzer’s opinion.  He further found that the work injury was not a substantial contributing factor to any wage loss, that she had been released to work without restrictions, that her concussion had resolved, that she had not sustained any neuropsychological injuries as a result of the work injury, and that she has no disability related to the 2017 work injury.  Based on these findings, the compensation judge denied the employee’s claims for PPD, wage loss benefits, and a rehabilitation consultation.  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 argues that Dr. Gratzer’s opinion lacked adequate foundation and that the compensation judge should have adopted Dr. Swenson’s opinion.  The employee claims that Dr. Gratzer disregarded the effects of the employee’s 2017 injury from a brutal assault in concluding that the employee did not develop any psychiatric sequelae from that injury.  She also asserts that Dr. Swenson’s opinion is more consistent with the effects of employee’s injury and that she should be awarded 32 percent PPD and ongoing medical treatment expenses based on that opinion.

A compensation judge’s choice among conflicting expert opinions is generally upheld unless the opinion chosen lacked adequate factual foundation.  Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985).  An expert opinion lacks adequate foundation when the opinion does not include the facts or data upon which the expert relied in forming the opinion, there is no explanation of the basis for the opinion, or the facts assumed by the expert in rendering the opinion are not supported by the evidence.  Hudson v. Trillium Staffing, 896 N.W.2d 536, 540, 77 W.C.D. 437, 442 (Minn. 2017).  The opinion need only be based on “enough facts to form a reasonable opinion that is not based on speculation or conjecture.”  Gianotti v. Indep. Sch. Dist. 152, 889 N.W.2d 796, 802, 77 W.C.D. 117, 124 (Minn. 2017).  The determination of whether an expert’s opinion rests on adequate foundation is within the discretion of the compensation judge.  Id.

Dr. Gratzer’s opinion included the evidence upon which he relied in forming the opinion based on his review of the employee’s medical records, the police report of the incident, a recorded interview of the employee, and surveillance video, as well as his evaluation of the employee and the history he took from the employee.  He was aware of the circumstances of the employee’s injuries.  Dr. Gratzer explained the basis for his opinion based on evidence in the record.  He noted that the employee reported that her anxiety condition worsened after the work injury but stated that the employee related her increased work stress to psychosocial stressors such as a difficult work environment and issues with supervisors, separate from her work injury.  He also opined that these issues were inconsistent with PTSD.  In addition, Dr. Gratzer opined that the employee’s reported symptoms of PTSD were atypical and that she did not meet the criteria for impairment of social or occupational functioning required for a PTSD diagnosis.  The compensation judge did not err by accepting Dr. Gratzer’s adequately founded medical opinion.

The compensation judge also considered Dr. Swenson’s opinions but rejected them as not persuasive and not credible.  The judge noted that the employee lived independently, was highly functional, and had no work restrictions since June 2017.  While there is evidence in the record that supports the employee’s position, the issue for this court is whether substantial evidence supports the finding that the compensation judge made based on his choice of adequately founded medical opinions.  See Ludford v. Honeywell, Inc., slip op. (W.C.C.A. Mar. 17, 2004); Land v. Washington Cty. Sheriff’s Dep’t, slip op. (W.C.C.A. Dec. 23, 2003); see also Redgate v. Sroga’s Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988) (“[t]he point is not whether [the appellate court] might have viewed the evidence differently, but whether the findings of the compensation judge are supported by evidence that a reasonable mind might accept as adequate”).

Relying on the opinions of Dr. Gratzer, Dr. McPherson, and Dr. Mann, the compensation judge found that the employee had not sustained any PPD as a result of her work injury.  Determining the extent of PPD is generally a question of fact for the compensation judge and is affirmed where supported by substantial evidence.  Jacobowitch v. Bell & Howell, 404 N.W.2d 270, 274, 39 W.C.D. 771, 778 (Minn. 1987); Nerud v. Duininck Bros., Inc., 67 W.C.D. 456, 462 (W.C.C.A. 2007).  As trier of fact, a compensation judge is responsible for determining the degree of disability after considering all evidence and relevant legal factors in a case.  Erickson by Erickson v. Gopher Masonry, Inc., 329 N.W.2d 40, 43, 35 W.C.D. 523, 528 (Minn. 1983); see Jensen v. Best Temporaries, 46 W.C.D. 498, 500‑01 (W.C.C.A. 1992).  In this case, Dr. Gratzer opined that the employee had no disability relating to her 2017 work injury and Dr. McPherson also opined that the employee had no PPD.  In addition, Dr. Mann opined that the employee’s post-concussive syndrome had resolved.  Substantial evidence supports the compensation judge’s denial of the employee’s PPD claim, and we affirm.

To be eligible for wage loss benefits, an employee must be subject to physical restrictions related to the work injury.  Kautz v. Setterlin Co., 410 N.W.2d 843, 845, 40 W.C.D. 206, 208 (Minn. 1987).  Similarly, an employee who is not subject to work restrictions is not a qualified employee entitled to rehabilitation services.  Judnick v. Sholom Home West, slip op. (W.C.C.A. Aug. 4, 1995) (an employee who has recovered from the work injury or has no employment restrictions from the injury is not entitled to a rehabilitation consultation); see also Brownell v. Hibbing Taconite Mining Co., No. WC09-5036 (W.C.C.A. Apr. 8, 2010); Brew v. College of St. Scholastica, slip op. (W.C.C.A. Aug. 5, 2003); Ortega v. Medallion Kitchens of Minn., slip op. (W.C.C.A. Apr. 3, 2000) (where the employee was without any residual disability related to the work injury, an award of a rehabilitation consultation was reversed); Minn. R. 5220.0100, subp. 22.  In this case, Dr. Mann released the employee to work without restrictions in June 2017.  Dr. Gratzer and Dr. McPherson also opined that the employee did not need work restrictions.  Accordingly, we also affirm the compensation judge’s denial of wage loss benefits and a rehabilitation consultation.