ISAIAH COWAN, Employee/Appellant, v. BLACK SEA ENTERPRISES, INC. d/b/a SARPINOS, and AMTRUST N. AM., Inc., Employer/Insurer Respondents, and NORAN NEUROLOGICAL CLINIC, ASKEW REHAB. SERVS., ALLINA HEALTH BUFFALO HOSP., Intervenors.

The employee appeals the compensation judge’s finding that the March 26, 2022, work injury was temporary and had resolved by March 26, 2023.  The employee maintains that the compensation judge’s decision was contrary to substantial evidence in the record and relied on medical and psychological testimony that lacked adequate foundation.  As the medical records relied upon had adequate foundation and the decision is supported by substantial evidence, we affirm.

The employee, Isaiah Cowan, began work for the employer, Black Sea Enterprises, Inc. d/b/a Sarpinos, in August 2021.  The employee performed a variety of work for the employer, but by March 2022, the employee’s primary duties were delivering pizza.  On March 26, 2022, the employee was delivering pizza using a vehicle owned by the employer.  While the employee was driving that vehicle, it was struck on the passenger side by another vehicle, causing the passenger airbag to deploy.  The employee’s car was spun around and the employee struck his head on the driver’s side door pillar.^[1]  The other driver did not stop after the accident, and the employee pursued the other driver by car for approximately two blocks.  The other driver then stopped, got out of his vehicle, and pointed a handgun at the employee, who fled from his vehicle and called 911.

The employee sought treatment at the Hennepin County Medical Center Emergency Department immediately after the incident.  The employee described having a mild headache and overall body ache, but no other symptoms.  A cranial CT scan was performed that showed no acute abnormalities.  The employee was diagnosed with a traumatic brain injury (TBI).  The employee was discharged with a referral to a TBI clinic.^[2]

The employee followed up at the Hennepin Health Care TBI clinic on April 22, 2022.  He described symptoms of overall soreness, headaches, dizziness, trouble with balance, and low back and neck pain.  At a follow-up examination on May 4, 2022, the employee complained of sensitivity to light and difficulty driving due to mental fogginess.  At another follow-up on May 10, 2022, the employee was examined for speech pathology arising from the March 2022 TBI.  The employee was kept off work and was directed not to operate a motor vehicle.^[3]

On May 18, 2022, the employee participated in a physical therapy session and displayed inconsistent complaints of pain with respect to range of motion (ROM) exercises.  The employee became belligerent and argumentative.  The therapist ended the session.^[4]

On May 24, 2022, Ana P. Groeschel, M.D., examined the employee.  The employee underwent a cervical MRI as part of the examination.  The MRI results were described as unremarkable except for some disc degeneration at C5-6 with mild narrowing of the spinal canal and the right neuroforamen.  Dr. Groeschel assessed the employee with neck, thoracic, and lumbar spinal pain, post-traumatic headache, and nightmares.  She kept the employee off work and referred him for psychological evaluation and physical therapy.^[5]

On June 13, 2022, the employee was evaluated for physical therapy at NovaCare Rehabilitation.  He described the mechanism of injury as having been struck broadside in a motor vehicle accident where the other vehicle was travelling at 70 miles per hour.  The employee reported pain symptoms in his neck and back, radiating down his left leg, which he rated 10/10.  He started physical therapy on June 16, 2022.  The employee participated in some of the activities, while complaining of pain rated from 5/10 to 10/10.  The employee’s last visit was July 21, 2022, and he did not participate in the exercises due to headache.  The chart note from August 23, 2022, indicates that the employee discontinued physical therapy.^[6]

At a follow-up examination with Dr. Groeschel on July 12, 2022, the employee described “‘60%’ improvement in regards to brain fog and balance difficulties,” but his low back pain had increased and he was experiencing left sided radicular symptoms.^[7]  A lumbar MRI showed mild narrowing from L4 to S1, but no evidence of trauma.  Dr. Groeschel suggested trigger point injections with an occipital nerve block (TPI/ONB).  This procedure was conducted on October 7, 2022.  Dr. Groeschel kept the employee off work until November 9, 2022.

On September 28, 2022, the employee underwent a psychological evaluation and treatment session with a therapist, Megan Mikulski, MA, LPCC.  Ms. Mikulski documented that the employee presented as manic and that, at times, his thoughts were grandiose and delusional.  With regard to the accident, she noted “his account of the accident he was allegedly in seemed incredulous [sic].”  Ms. Mikulski diagnosed the employee with an unspecified bipolar and related disorder.^[8]  The employee did not follow up with psychological treatment.

On October 24, 2022, the employee underwent an independent medical examination (IME) conducted by James R. Allen, M.D., a neurologist, on behalf of the employer and insurer.  Dr. Allen noted the employee’s significant history of prior injuries, including injury to the low back, a left ankle fracture requiring surgery and hardware, and a full anterior cruciate ligament tear in the right knee, addressed by surgery in 2011.  Dr. Allen diagnosed diffuse musculoskeletal injuries from a motor vehicle accident on March 26, 2022, mostly improved by the time of the IME.  He also diagnosed the employee with a TBI from that accident.  He concluded that the injuries were temporary, but that the employee had not yet reached maximum medical improvement (MMI).  Dr. Allen anticipated that the employee would be able to return to work in the coming weeks or months.  Dr. Allen also opined that the employee would be recovered from the effects of the work injury no later than one year from the work injury.^[9]

On November 9, 2022, the employee was examined on follow-up by Dr. Groeschel.  The employee described no improvement from the TPI/ONB.  The employee’s low back pain was described as mild, unless exacerbated by bending, twisting, or lifting.  The employee underwent a repeat TPI/ONB.  Dr. Groeschel released the employee to return to work, four hours per day, three days per week, with limited twisting, bending, and lifting and no driving.^[10]

On December 2, 2022, the employee underwent an independent psychological examination (IPE) conducted by Paul Arbisi, L.P., Ph.D., on behalf of the employer and insurer.  Dr. Arbisi assessed the employee as deliberately obfuscating his current condition.^[11]  Dr. Arbisi concluded that the March 26, 2022, work injury was not a substantial contributing cause for any of the employee’s complaints and that the employee did not suffer from any psychological condition arising from that injury.^[12]

On February 21, 2023, the employee resumed physical therapy for an eight-week program at Courage Kenny.  By April 14, 2023, the employee was reporting significant improvement in his low back pain, with his acute pain at 5/10 and 10 percent improvement from week to week.

In May 2023, Dr. Allen conducted a record review of the employee’s medical care, both before and after his October 2022 IME.  He opined that the employee’s chronic back pain had returned to the baseline that existed prior to the March 26, 2022, work injury.  Dr. Allen repeated his view that the employee had suffered a temporary injury, and opined that it had resolved, no later than March 26, 2023.  Dr. Allen did not consider the March 26, 2022, work injury to be a substantial contributing cause of any of the employee’s current complaints and opined that no further medical care was indicated.  Dr. Allen repeated these conclusions in yet a further record review that included additional medical records and the IPE of Dr. Arbisi.  In his third report, Dr. Allen questioned whether the employee was truthfully reporting his symptoms.^[13]

On October 8, 2023, Dr. Groeschel prepared a narrative report opining that the employee suffered ongoing effects of the March 26, 2022, work injury, including headaches, cervical and thoracic strain, and an exacerbation of low back pain.  Dr. Groeschel recommended further occipital blocks and neurotoxin injections and suggested referral of the employee for a psychological evaluation for post-traumatic stress disorder (PTSD).

A Petition to Discontinue Benefits and Request for Formal Hearing were consolidated and heard before the compensation judge on October 30, 2023.  The issues at hearing were as follows: first, did the employee’s work-related injuries resolve by March 26, 2023, or September 29, 2023, and if not, is the employee ineligible for claimed wage loss benefits due to a failure to diligently search for work after September 29, 2023; second, were the medical treatments and rehabilitation services reasonable, necessary, and causally related to the work injury;  third, are the recommended neurotoxin injections for neck pain, and a consultation with a psychologist to evaluate PTSD symptoms, reasonable, necessary, and causally related to the work injury.

Following the hearing, the compensation judge determined that the employee’s work injury was temporary and had resolved as of March 26, 2023.  The compensation judge ordered payment of outstanding charges to the intervenors through March 26, 2023, but otherwise dismissed the employee’s claims.  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 sought benefits based on continuing symptoms which he alleged arose from or were aggravated by the March 26, 2022, work injury.  The compensation judge found that the employee had fully recovered by one year after the injury, and that any restrictions, medical treatment, and disability after March 26, 2023, were unrelated to the work injury.  The judge stated in her memorandum that she found the expert opinions of Drs. Allen and Arbisi to be most persuasive as to whether the employee’s work injuries were temporary and had resolved.

The employee contends that it was error for the judge to admit the opinions of Drs. Allen and Arbisi into evidence, since those opinions relied on a therapy note of Ms. Mikulski which questioned whether the accident at issue actually occurred.  A compensation judge’s decision to adopt the opinion of an expert must be upheld if the opinion has adequate foundation, absent an abuse of discretion.^[14]  “An expert opinion lacks adequate foundation when the opinion does not include the facts upon which the expert is relying in forming the opinion, there is no explanation of the basis for the opinion, or the facts assumed by the expert are not supported by the evidence.”^[15]  Here, the employee argues that reliance on an erroneous factual assumption, that the accident did not occur, discredits the entire opinion, such that the opinion is inadmissible as a matter of law.   The employee asks us to reverse the compensation judge, contending that the findings are manifestly contrary to the evidence.  We are not persuaded.

First, we note that Ms. Mikuluski did not conclude that the accident did not occur.  She stated in her office note that “whether or not the accident actually happened was difficult to ascertain.”  Second, there is no evidence that either Dr. Allen or Dr. Arbisi questioned whether the accident actually happened.  Their reports, and the background information they received through counsel for the employer and insurer, demonstrate that they understood that an accident did in fact occur.^[16]  Dr. Allen explicitly opined that the employee suffered physical injuries and a mild TBI in the accident.  This opinion did not change after receiving Ms. Mikuluski’s report.  As there was no erroneous factual assumption made or relied upon by either expert, the judge’s admission of, and reliance upon, those opinions was not an error of law.

An employee seeking temporary total disability benefits must prove that the work injury contributes to an inability to work or to find employment.  The employee must be subject to restrictions related to the work injury to be entitled to temporary total disability benefits.^[17] Generally, the termination or continuation of temporary total disability benefits is a factual determination made by the compensation judge.

In this case, the symptoms the employee reported to his medical providers were subjective.  The credibility of the employee’s reported symptoms was central to establishing his claim of entitlement to benefits.  The credibility of the employee also became a factor in reviewing expert medical opinions to the extent those opinions relied on the employee’s reported symptoms.  The compensation judge ultimately found the employee’s testimony to be unreliable, and accepted the expert medical opinions of Drs. Allen and Arbisi over the expert medical opinion of Dr. Groeschel.  This is the basis for the compensation judge’s determination that there was a lack of evidence to support the employee’s claim that the work injury continued to be a factor in the wage loss claim and the need for medical treatment or ongoing disability after March 26, 2023.  This court must give deference to the compensation judge with respect to the assessment of witnesses’ credibility.^[18]

The employee next contends that Dr. Allen did not examine the employee after 2022 and, therefore, Dr. Allen could not have rendered an opinion regarding the nature and extent of the work injury in 2023.  As stated above, “An expert opinion lacks adequate foundation when the opinion does not include the facts upon which the expert is relying in forming the opinion, there is no explanation of the basis for the opinion, or the facts assumed by the expert are not supported by the evidence.”^[19]  Dr. Allen reviewed the employee’s medical records following the 2022 IME.  An expert need not have every possible fact to form a reasonable opinion.^[20]  The arguments of the employee go to the evidentiary weight of Dr. Allen’s opinion rather than its foundation.^[21]  The employee’s medical records and the 2022 IME provide a sufficient basis for Dr. Allen’s 2023 opinion.

After a thorough review of the record, we conclude that substantial evidence in the record supports the compensation judge’s finding that the employee’s March 26, 2022, work injury was temporary and had resolved by March 26, 2023.  The compensation judge relied on the expert medical opinion of Dr. Allen, which the judge considered more persuasive than that of Dr. Groeschel. Dr. Allen’s opinion was adequately founded, and the compensation judge was within her discretion to rely on that opinion.^[22]  We affirm.