JACQUELINE A. PETERSON, Employee/Respondent, v. ALLINA HEALTH/SELF-INSURED, and GALLAGHER BASSETT SERVS., INC., Self-Insured Employer/Appellant, and CTR. FOR DIAGNOSTIC IMAGING, BRIGHT EYES VISION CLINIC, P.A., PRUDENTIAL INS. DMS, BLUE CROSS BLUE SHIELD OF MN & BLUE PLUS, and EAR NOSE & THROAT SPECIALTY CARE OF MN, Intervenors.

The self-insured employer appeals the compensation judge’s finding that the admitted work injury is a substantial contributing factor to continuing medical treatment and disability.  It also appeals the judge’s finding that the employee had not reached maximum medical improvement (MMI).  Substantial evidence supports the judge’s findings, and we affirm.

For twenty years, Jacqueline Peterson, the employee, was a radiology technician for Allina Health, the employer.  On April 4, 2019, while working in a radiology examination room, she turned, and her left temple struck against a monitor that was suspended from the ceiling.  She testified that it was a significant impact and she blacked out and briefly lost consciousness.  She reported the injury to her supervisor and finished her shift.  The safety event report, completed less than an hour after the injury, indicated that the employee had neck pain, left eye pain, and a headache with mild nausea, but no vision problems, dizziness, light sensitivity, balance issues, loss of consciousness, or sensitivity to sound.  (Ex. 19.)

The next day, she saw an Allina clinic physician, Isaac Adediran, M.D., with complaints of neck pain, headache, vertigo, and nausea.  An MRI scan and an x-ray revealed normal findings.  Dr. Adediran diagnosed her with a head injury/concussion and took her off work.  She was referred to a neurologist, Allan Ingenito, M.D., who also diagnosed the employee with a mild closed head injury with convergence insufficiency.^[1]

In May 2019, the employee was referred to Allina Health’s Concussion Management Program and began treating with G. Budd Renier, M.D.  Dr. Renier diagnosed her condition as a concussion with loss of consciousness and post-concussive syndrome with vision disturbance.  He referred the employee to Bright Eyes Vision Center for headache syndrome, convergence insufficiency, and dizziness.  On June 7, 2019, while seeking care at Bright Eyes Vision Clinic, the employee also complained of hypersensitivity to noise, but audio testing was normal.  She was then referred to an otolaryngologist, William Garvis, M.D., who reviewed a CT scan and questioned whether the employee suffered from a possible non-displaced fracture.  Further radiologic workup showed a cochlear facial dehiscence, but no fracture.  Dr. Garvis determined that the employee may have third window syndrome^[2] and hyperacusis,^[3] and he subsequently performed left exploratory tympanotomy surgery with round window reinforcement on November 20, 2020.  Post-surgery, the employee testified that she had improved auditory symptoms.

The employee returned to part-time work on September 7, 2021, and to full-time work without wage loss on November 6, 2021.

The employer admitted primary liability but disputed the nature and extent of the injury.  It maintained that the employee’s claimed symptoms were an extension of previous head trauma experienced in 1990, 2014, and 2016, when the employee had suffered from similar symptoms of headache, convergence insufficiency, hearing loss, pressure in the left ear, and neck pain.  The employer also questioned the employee’s subjective complaints, which seemed to worsen over time and were unsupported by objective findings on examination and in diagnostic tests.  It obtained video surveillance of the employee during a time when she was restricted from work which showed her carrying items to her car, driving, bending, squatting, lifting, and using a shovel to dig out a large plant.  The employer also retained three separate medical experts: a neuro-ophthalmologist, Alan Weingarden, M.D., a neurologist, Khalafalla Bushara, M.D., and an otolaryngologist, Michael Hopfenspirger, M.D.

In his narrative report of September 24, 2019, Dr. Weingarden opined that the employee had no objective findings.  He diagnosed her with near-sightedness and no other ophthalmologic diagnoses.  He opined that the employee did not suffer an injury on April 4, 2019, and therefore the treatment to-date was not reasonable or necessary, did not require ongoing treatment or care, and had a zero percent permanent partial disability rating.  In a supplemental report dated May 26, 2021, Dr. Weingarden, after reviewing additional medical records, maintained his medical opinions had not changed and concluded that the employee did not meet the basic criteria for convergence insufficiency, had reached MMI, and was malingering.

Dr. Bushara provided an independent medical examination (IME) report on November 4, 2019.  He opined that the employee sustained a temporary mild closed-head injury without loss of consciousness on April 4, 2019, which may have resulted in a mild myoligamentous sprain/strain injury of the cervicothoracic spine, but that such an injury would have resolved within four to six weeks.  He opined that the medical treatment for the first four to six weeks was reasonable and necessary.  However, he deemed none of the employee’s subsequent treatment to be reasonable and necessary or causally related to the work injury, because her diagnoses and ongoing complaints were based solely on subjective symptoms.  Finally, he opined that the employee reached MMI four to six weeks after the incident, required no additional treatment or diagnostic studies, and did not sustain any permanent partial disability as a result of the injury.  In a supplemental report dated March 29, 2021, Dr. Bushara reviewed additional medical records, noting that his opinions had not changed since his previous examination of the employee.  He opined that, from a neurological standpoint, the employee was capable of performing her job duties with no physical restrictions related to the April 4, 2019, incident.  Further, Dr. Bushara disagreed with the medical report of Dr. Renier, specifically pointing out that his report did not mention the employee’s symptoms prior to the date of injury that were identical to her subjective symptoms after the date of injury.  He also noted that Dr. Renier did not mention certain non-physiological findings which could indicate malingering or psychogenic etiology.

Dr. Hopfenspirger issued his initial report on March 8, 2021, and provided a supplemental report on June 9, 2021.  He opined that there was no evidence of pressure of the optic capsule dehiscence and that the results did not support the diagnosis of third window syndrome or a need for the subsequent surgery, since the employee continued to suffer from most of the same symptoms post-surgery.  He emphasized that objective testing, including CT and MRI scans, were all normal.  He concluded that the injury of April 4, 2019, was not a substantial contributing factor to the employee’s complaints, that the employee had not reached MMI because her condition may further improve, and that the left exploratory tympanotomy surgery performed was unnecessary and added new symptoms.

In response to the IME opinions, Dr. Renier drafted a narrative report dated February 22, 2021.  He noted that the employee had medical findings^[4] which showed persisting vision processing and vestibular dysfunction.  In response to the IME opinions regarding the lack of objective findings, he opined that in cases of concussion, reliance solely on objective findings would “sadly miss out on otherwise helping a large number of concussion patients.”  (Ex. A.)

The employee filed a claim petition asserting wage loss and medical benefits due to the April 4, 2019, work injury.  The employer disputed the nature and extent of the injury arguing that the claimed wage loss and medical treatment were not based on objective findings and that the employee’s condition appeared to worsen over time, which was not the usual trajectory of healing for this injury.  It also argued that the employee had reached MMI.

The matter went to hearing on April 29 and May 2, 2022.  The employee argued that with a traumatic brain injury (TBI), subjective symptoms may be relied upon to corroborate a diagnosis.  The employer’s reliance solely on objective findings, she argued, ignored her subjective complaints that were typical of this type of injury.

The compensation judge awarded temporary total disability benefits through September 7, 2021, temporary partial disability benefits through November 6, 2021, medical expenses, and determined that the employee had not reached MMI.

The employer 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 employer argues that the compensation judge’s findings are not supported by substantial evidence.  First, it contends that its three IME opinions were well-supported by the evidence, and that the employee’s treating doctors’ opinions did not have adequate bases upon which to offer an opinion.  It also argues that the employee’s prior history of headaches, neck injuries, and visual and hearing disturbances should have been more fully considered by the treating doctors and the compensation judge.  Finally, it argues that the employee changed her account of the injury and her symptoms over a two-year period and that the compensation judge erred in accepting the employee’s testimony as credible.

We agree that there was evidence to support the employer’s positions, including the opinions of its three medical experts.  However, our responsibility is not to determine whether there is substantial evidence in the record that could support the appellant’s version of the facts.  Rather, we must affirm the compensation judge’s findings if supported by evidence that a reasonable mind might accept as adequate.  Hengemuhle, 358 N.W.2d at 60, 37 W.C.D. at 240.  Here, we conclude that it was reasonable for the judge to determine that the work injury was a substantial contributing factor to the employee’s ongoing disability.

In finding that the employee’s testimony was credible and persuasive, the compensation judge accepted that the employee continued to experience ongoing symptoms related to the work injury.  Despite the preexisting medical treatment for similar symptoms, the medical records confirmed the employee’s testimony that she was able to perform her job duties without difficulty before the 2019 work injury but was limited after the work injury.  The compensation judge considered and rejected the opinions of the appellant’s medical experts, and instead adopted the opinion of Dr. Renier, who stated that in the case of a traumatic brain injury or post-concussion diagnosis, the employee’s credible subjective symptoms have to be taken into account.  The compensation judge also determined that Dr. Renier convincingly countered the arguments that a delayed onset of some symptoms is inconsistent with post-concussion syndrome and that mild TBIs virtually always recover within weeks.  He relied on the opinions of Dr. Garvis and Dr Renier, who noted that the employee had an atypical healing pattern requiring significant and extended treatment.  Finally, the compensation judge found that the surveillance video was not a significant factor.  Because these findings are supported by substantial evidence, we affirm.

The employer also raises legal issues on appeal.  It argues that the judge committed an error of law and applied the wrong standard of proof in relying on the employee’s subjective complaints despite normal objective test results.  It also argues that the judge erred in interpreting the language of Minn. Stat. § 176.011, subd. 13a, which defines “maximum medical improvement” as “the date after which no further significant recovery from or significant lasting improvement to a personal injury can reasonably be anticipated, based upon reasonable medical probability, irrespective and regardless of subjective complains of pain.”  We address these legal issues de novo.

The employer contends that the compensation judge adopted the wrong legal standard in determining the nature and extent of the injury because he relied on a theory that subjective symptoms matter despite the objective tests showing normal findings.  Reliance on subjective complaints in determining entitlement to workers’ compensation benefits, it argues, presents an impossible situation for employers, since an employee need only testify that she has symptoms in order to be awarded benefits.

We are not persuaded.  We have long held that a medical opinion regarding the existence of an injury need not be based solely on objective findings.  Steinbach v. B.E. & K Constr. Co., slip op. (W.C.C.A. Nov. 7, 1991).  Subjective complaints of pain by the employee, along with a medical expert opinion that the employee sustained a work-related injury, are sufficient to establish the existence of a personal injury.  Id.  Here, the employee’s subjective complaints were medically reviewed by Dr. Renier, who has treated thousands of concussion patients since 2008.  Dr. Renier opined that the tests administered to the employee showed signs of persisting vision processing and vestibular dysfunction.  Dr. Renier explained why it was, in his view, medically appropriate to rely on subjective complaints in concussion cases.  The compensation judge found Dr. Renier’s view persuasive and it was not unreasonable for the judge to adopt Dr. Renier’s opinion.

Finally, the employer argues that the judge incorrectly interpreted the definition of MMI.  Citing Minn. Stat. § 176.011, subd. 13a, it maintains that a compensation judge cannot rely solely on the employee’s subjective complaints when determining MMI.  We are not persuaded.

Introduced by the legislature in 1983, the language defining MMI has changed, but the underlying principle has not.  MMI is the date after which no further significant recovery from or significant lasting improvement to a personal injury can reasonably be anticipated, based upon reasonable medical probability.  Minn. Stat. § 176.011, subd. 25 (supp. 1983).  MMI occurs when there is proof that the employee’s condition has stabilized and will likely show little further improvement.  Polski v. Consolidated Freightways, Inc., 39 W.C.D. 740, 742 (W.C.C.A. 1987).  The finding of MMI starts the ticking of the clock for cessation of ongoing temporary total disability benefits and the beginning of permanent partial disability benefits.  Minn. Stat. § 176.101, subds. 1(j), 2(b).  MMI must be reached for all injuries and conditions contributing to the employee’s disability for benefits to be discontinued.  Schewe v. Tom Thumb Food Stores, 485 N.W. 2d 570, 46 W.C.D. 693 (Minn. 1992).  In 1995, Minn. Stat. § 176.011, subd. 25 (renumbered subd. 13a in 2008), defining MMI, was amended to include the phrase “irrespective and regardless of subjective complaints of pain.”  It is this language which we are asked to address here.

In analyzing the meaning behind the definition of MMI, we look to the plain meaning of the statute as written.  See Shire v. Rosemount, Inc., 875 N.W.2d 289, 292, 76 W.C.D. 173, 176 (Minn. 2016); see also ILHC of Eagan, LLC v. Cnty. of Dakota, 693 N.W.2d 412, 419 (Minn. 2005) (“The touchstone for statutory interpretation is the plain meaning of a statute’s language.”).  The plain meaning of the word “irrespective” is “without taking account.”^[5]  The plain meaning of the word “regardless” is “without regard.”^[6]  Therefore, in determining if MMI has been reached, the fact finder must not consider an injured worker’s subjective complaints of pain.

In the case before us, the compensation judge adopted the medical opinion of Dr. Renier, who in his February 22, 2021, report, indicated to a reasonable degree of medical certainty that the employee continues to experience subjective symptoms, including signs of persisting vision processing, vestibular dysfunction, post-concussion headaches, and left ear abnormalities, in addition to neck pain.  (Ex. A.)  The statute is clear that in determining whether an employee has reached MMI for a work-related injury, the compensation judge cannot rely solely on an injured worker’s subjective pain complaints.  As this court has stated, however, “MMI is not a purely medical conclusion but instead is a finding of ultimate fact to be based on a variety of factors, including, in addition to medical opinion, factors such as the history of improvement, current treatment, preexisting conditions, proposed treatment, vocational experts’ statements, and testimony of the employee.” Korthals v. McNeilus Truck Mfg., slip op. (W.C.C.A. May 19, 1991) (citing Hammer v. Mark Hagen Plumbing & Heating, 435 N.W.2d 525, 528-29, 41 W.C.D. 634, 639 (Minn. 1989)); see also Grace v. Smith Foundry Co., No. WC18-6153 (W.C.C.A. Aug. 30, 2018); see also Mundy v. Am. Red Cross, slip op. (W.C.C.A. Aug. 29, 2000).  In addition, we cannot conclude that the statute was intended to prescribe a medical standard for a physician’s opinion about MMI that would require a doctor to disregard an employee’s subjective symptoms.

The compensation judge explained that the employee’s testimony “coupled with the opinions of Dr. Garvis and Dr. Renier, was compelling.”  (Mem. at 10.)  The compensation judge did not base his MMI finding solely on the employee’s subjective complaints of pain, but also relied on other factors, including the expert medical opinion of these physicians.  We, therefore, conclude that his findings do not controvert the language of Minn. Stat. § 176.011, subd. 13a.  The compensation judge’s findings and order are affirmed in its entirety.