LEANN BOSQUEZ, Employee/Appellant, v SUPER AMERICA and YORK RISK SERVS. GRP., Employer-Insurer/Respondents, and FAIRVIEW HEALTH SERVS. – ALL ENTITIES and CONDUENT PAYMENT INTEGRITY SOLS., Intervenors.

The employee appeals the compensation judge’s findings and order denying the employee’s claim for benefits.  Substantial evidence supports the judge’s finding and we affirm.

Leann Bosquez, the employee, had worked for Super America, the employer, since 2015 and often worked long hours and seven days a week.  In 2017, she suffered from exhaustion, forgetfulness, intractable headaches, dizziness, “altered awareness,” balance issues, and trouble focusing.  She sought care from a neurologist, Gennadiy Shevchenko, M.D., who treated the employee for depression and anxiety.  In March 2018, when seeing her primary care physician, Deqa Mohamed, M.D., the employee reported having had trouble with sleep, concentration, and speech, on nearly a daily basis.  A few months later, on July 28, 2018, while attempting to move newly delivered cases of Gatorade at work, a case of Gatorade fell from a stack and struck her on the head.  The employer and its insurer admitted liability for the head injury.

Nine days after the head injury, the employee sought medical care from Dr. Mohamed.  The employee complained of headaches and pain in her neck and shoulders but reported no vision changes.  Dr. Mohamed diagnosed a concussion.  A CT scan was ordered and the results read as normal.  On August 21, 2018, the employee began treating with the University of Minnesota Physicians’ (UMP) Concussion Clinic.  Colin O’Connor, PA-C, noted that, for the first 10 days, her only symptoms were “local pain, neck pain but developed symptoms of tripping over her words, lapses in concentration and memory.”  PA-C O’Connor restricted the employee’s work to 4 hours each day and advised her to rest and reduce screen time.   He suspected that anxiety related to her health was causing her constellation of symptoms and he informed her that he did not think she had a brain injury.

On August 29, 2018, the employee underwent a neuropsychological examination with Jackie Micklewright, PhD, LP, ABPP-CN, a clinical neuropsychologist at Bethesda Hospital, who noted the employee’s longstanding history of depression and anxiety.  Dr. Micklewright concluded that the employee had grossly normal cognitive functioning.

In November 2018, the employee saw William N. Robiner, Ph.D., ABPP, LP, director of health psychology at the University of Minnesota.  Dr. Robiner noted the employee’s pre-injury history of headaches, depression, anxiety, confusion, memory, fatigue, and balance and speech issues, but opined that these symptoms had changed in frequency since the work injury.  He concluded that without the work injury, the employee would not have manifested such a wide range of variable impaired functions or required consequential medical and neurological treatment, occupational and physical therapy, and mental health services.  The employee continued to treat with Dr. Robiner.  By May 2020, the employee was selling Avon products, preparing to move her residence, sleeping better, and resuming her education.

The employee returned to Dr. Shevchenko for an evaluation on April 10, 2019.  He felt that most of her symptoms were related to underlying mental health conditions.  He wrote that upon a detailed review of her current symptoms, he saw no neurological explanation for them.  (Ex. 7.)  He questioned whether she had in fact sustained a concussion, because her symptoms developed 10 days later in the context of a stressful time at work.  Finally, he noted that cases of post-concussive syndrome usually resolve in three to four months.

Stephanie Standal, M.D., of the UMP Concussion Clinic saw the employee in April 2019.  Dr. Standal recommended that the employee engage in occupational therapy and a work hardening program to assist her return to work.  Noting that there was a strong psychological component in the employee’s ongoing complaints, Dr. Standal encouraged the care team to avoid reinforcing the “sick role” in the employee.  (Ex. 18.)   She also referred the employee for balance and vision therapy.

On August 8, 2019, the employee was seen by Christian Larson, O.D., an ophthalmologist, for ocular health.  He concluded that her ocular health and vision was within normal limits, but because there was exophoria, he recommended prism lenses for convergence insufficiency.

The employer and insurer sought opinions from two medical experts, a neurologist, Khalafalla Bushara, M.D., and a psychiatrist, Thomas Gratzer, M.D.  Both medical experts reviewed multiple medical records, took a medical history from the employee, and conducted a physical or psychological examination.  In a narrative report of May 17, 2019, Dr. Bushara opined that the employee had suffered a mild myoligamentous sprain strain of the cervical region and a mild closed head injury without loss of consciousness as a result of the work injury of July 28, 2018.  He thought that the initial six weeks of medical treatment was reasonable and necessary; however, he considered subsequent multiple visits at the concussion clinic and prolonged therapies, including physical, psychological, and speech therapy, to be excessive.  On examination, he found no objective abnormalities to indicate residual injuries.  After reviewing additional medical records from the employee’s treatment before July 28, 2018, Dr. Bushara noted that the employee had a long-standing history of similar complaints, including headaches and difficulty concentrating, as well as multiple other symptoms related to stress and depression.  He concluded that the July 28, 2018, work injury was a temporary aggravation of the employee’s pre-existing condition.

Dr. Gratzer diagnosed the employee with anxiety and depressive disorders, in remission.  Based on the employee’s medical records, he provided a chronology of consistent depressive and anxiety disorders going back to 1979 and leading up to the July 28, 2018, injury.  He considered it significant that the neuropsychological testing performed by Dr. Micklewright was essentially normal and was inconsistent with the employee’s reporting of severe memory and concentration problems following the work injury.   He concluded that the employee’s depressive and anxiety disorders had substantially improved following the work injury in association with a reduction of work stress.  In his view, the physical injury of July 28, 2018, did not substantially aggravate or accelerate the employee’s pre-existing mental health problems.

The employer and insurer did not retain an expert to review the employee’s claim for convergence insufficiency.

The employee filed a medical request and an objection to discontinuance, which were consolidated on March 6, 2020.  The matter was heard before a compensation judge on October 2, 2020, on the issues of whether the employee’s work injury was a substantial contributing factor to the employee’s head condition, and whether the employee suffered from consequential depression and/or anxiety as a result of the work injury.  The compensation judge found by a preponderance of the evidence that the work injury resulted in a mild concussion which fully resolved without the need for ongoing medical treatment or restrictions as of December 5, 2018.  He further found that the employee did not suffer from consequential depression and/or anxiety as a result of the work injury.  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).

On appeal, the employee argues that the compensation judge misunderstood the issues and thereby erred in reaching his conclusions and denying her claim.  The employee maintains that the issue claimed was whether the employee’s July 28, 2018, work injury aggravated the employee’s underlying condition, and not whether the employee’s injury was a consequential injury, as was stated in numbered paragraph 2 of the statement of issues in the judge’s Findings and Order.  The employee also argues that the judge erred in disregarding an uncontroverted medical opinion regarding the employee’s claim that her injury caused ongoing visual symptoms of a convergence insufficiency.  The employer and insurer respond that substantial evidence supports the judge’s determination that the employee did not sustain an aggravation of her underlying mental or physical health condition.

In McClellan v. Up North Plastics, slip op. (W.C.C.A. Oct. 18, 1994), this court outlined six considerations that may help a judge determine whether the work injury caused an aggravation of a pre-existing condition or whether the pre-existing condition continued to manifest regardless of the work injury.  These factors include the nature and severity of the pre-existing injury and the extent of the medical treatment prior to the aggravating incident, the nature and severity of the aggravating incident and the extent of restrictions and disability resulting therefrom, the nature of the symptoms and the extent of medical treatment following the aggravating incident, the nature and extent of the employee’s work duties and non-work activities during the relevant period, and medical opinions on the issue.  The employee argues that the judge failed to properly analyze whether the employee had suffered an aggravation of her pre-existing condition in light of these factors.

At the hearing, the employee did not ask the judge to consider the McClellan factors, nor did she raise the issue.  We have previously held that use of those factors is not mandatory.  See, e.g., Lambert v. City of Duluth, No. WC11-5268 (W.C.C.A. Nov. 18, 2011); Calbillo v. MG Waldrum, No. WC05-235 (W.C.C.A. Jan. 31, 2006).  The compensation judge’s detailed findings and memorandum demonstrate that the judge was aware of, and weighed the opinions of, the multiple medical experts who reviewed the employee’s pre-existing history and compared it to her post-injury symptoms.  He specifically addressed the opinions that related to the employee’s claim that her work injury aggravated her pre-existing condition, and we see no error in his analysis of the issues.  Substantial evidence in the record as a whole supports the judge’s finding that the employee sustained a mild concussion which resolved as of December 5, 2018.

The employee argues that the medical opinion of Dr. Larson, that the employee developed convergence insufficiency from the work injury and continues to require corrective prism glasses, was unopposed.  She argues that the judge was therefore required to find that she continued to experience visual residuals from the work injury and should receive ongoing benefits.  We are not persuaded.

A compensation judge may not ignore or “disregard” uncontroverted medical opinion.  See Flansburg v. Giza, 284 Minn. 199, 201-02, 169 N.W.2d 744, 746, 25 W.C.D. 3, 6 (1969).  There is a difference, however, between disregarding an unopposed medical opinion and rejecting that opinion based on other evidence.  This court has recognized that even though unopposed expert medical testimony cannot be disregarded, such testimony is not necessarily conclusive or binding upon a trier of fact.  Palmer v. ELO Eng’g, slip op. (W.C.C.A. June 28, 2005).

The compensation judge did not adopt the opinion of Dr. Larson, but certainly did not “disregard” his opinion.  He made specific findings which noted Dr. Larson’s opinion and diagnosis.  Moreover, based on the record as a whole, Dr. Larson’s opinion is not unopposed.  The employee had complained of blurry vision and balance problems a full year before her work injury.  In July 2017, the Fairview Clinics records reflected that the employee noted blurry vision and fell twice in one day.  At that time, Dr. Mohamed diagnosed the employee with acute intractable headaches with paresthesia, nausea, memory loss and blurred vision.  (Ex. 7.)  On August 6, 2018, at the first examination following the work injury, Dr. Mohamed reported “no vision change.”  Id.  In October 2019, Dr. Larson noted that the employee’s ocular health was within normal limits.

Because substantial evidence supports the judge’s finding that that the employee’s July 28, 2018, work injury resulted in a mild concussion which resolved without the need for ongoing medical treatment or restrictions as of December 5, 2018, we affirm.