CAUSATION – SUBSTANTIAL EVIDENCE. Substantial evidence, including eyewitness testimony of the circumstances surrounding the claimed injuries, supports the compensation judge’s finding that the employee did not suffer a work injury on the dates claimed.
Compensation Judge: Grant Hartman
Attorneys: Lori Zabel, pro se Appellant. Kenneth B. Huber, Law Offices of Kelly R. Rodieck & Associates, St. Paul, Minnesota, for the Respondents.
Affirmed.
PATRICIA J. MILUN, Chief Judge
The pro se employee appeals from the compensation judge’s decision denying her claims. As the judge’s decision is supported by substantial evidence, we affirm.
On April 18, 2013, the employee, Lori Zabel, slipped and fell on ice while working as a post office clerk for the employer, Gustavus Adolphus College. The employee suffered a brain/concussion injury from this fall. The injury was admitted and benefits were paid. Later, the employer and insurer ceased paying wage loss benefits, claiming that the employee’s injury was temporary and had resolved. The employee objected to the discontinuance and the matter was heard by a compensation judge on March 7, 2017. By Findings and Order dated April 25, 2017, the judge found that the employee’s April 18, 2013, work injury was temporary in nature and had fully resolved by May 19, 2014. The compensation judge denied the employee’s claim for temporary total disability benefits.[1] This findings and order was not appealed.
The employee continued to work for the employer in the college mail room following the injury. On July 13, 2015, the employee was sorting mail into a wall of mailboxes. The employee experienced dizziness, and she described the incident as:
So the slightest falling forward. I didn't have to hit my head hard. It was working and falling forward and running right into the wall in the head.[2]
. . .
I kind of like ran into the wall, because I kind of like ran in the wall and kind of -- I wouldn't say -- It wasn't -- When I say I hit my head, it wasn't a hard hit. I ran into the wall, like meaning I hit. . . . It didn't cut. It didn't make me bleed or anything. I hit. I ran in -- I call it running into the wall.[3]
A coworker who observed the incident described the employee as appearing dizzy and standing very still. When the employee reached out to steady herself against the mailbox wall, the coworker intervened and assisted the employee in sitting down. The coworker did not observe the employee strike her head against the wall. The employee’s coworkers assisted her to a car and drove her to the emergency room.[4] The employee was assessed as normal, and the diagnosis of the incident was vertigo - not otherwise specified (NOS) and migraine headache NOS. The employee was discharged that day.[5]
The employee returned to work a few days after the incident. On July 30, 2015, the employee was seated at a table sorting a mailing with other workers when the employee experienced dizziness again. The employee attributed her onset of symptoms to moving her head back and forth to perform the sorting combined with the harsh lighting and noise in the room. The employee’s coworkers intervened when she appeared to be losing consciousness. The employee was transferred to a wheelchair and transported to the emergency room. At no time did the employee strike her head in the second incident.
On March 17, 2016, Theodore M. Surdy, Ph.D. LP, examined the employee. Relying on the employee’s description of the July 13, 2015, incident, Dr. Surdy assessed the employee as suffering from postconcussion syndrome arising from a work injury on that date.[6]
The employee received care for her persistent symptoms from Jessica Alm, D.O., from the time of the 2013 work injury, onward. On August 15, 2017, Dr. Alm issued a narrative report based on the employee’s description of the events of July 13, 2015. Dr. Alm described the situation as the employee experienced a “zinger”[7] and dizziness while sorting mail at work, lost her balance, and fell into a wall. Dr. Alm considered the July 13, 2015, fall at work and the intensifying symptoms from the employee’s 2013 work injury to be substantial contributing factors to her current persistent postconcussive syndrome.[8]
In February 2018, the employee filed a claim petition seeking benefits related to a traumatic brain injury alleged to have been sustained at work on July 13, 2015. The compensation judge concluded that the employee’s claims were barred by the principles of res judicata under the 2017 findings and order and granted the employer and insurer’s motion to dismiss. That decision was appealed, and this court reversed as the employee’s 2018 claims involved different injuries from those decided in the 2017 findings and order.[9] The employee continued to pursue her 2018 claims.
On October 29, 2019, the employee underwent an independent psychological examination (IPE) conducted by Thomas E. Beniak, Ph.D. L.P., on behalf of the employer and insurer. Dr. Beniak ruled out any traumatic brain injury to the employee from the July 13, 2015, incident, assessing the employee’s description of the event as implausible.[10]
On February 24, 2021, Robert J. Olson, M.D., evaluated the employee’s condition. Dr. Olson was informed that the employee had suffered a TBI resulting in sensitivity to light and sound, headaches, and mood alteration. Dr. Olson did not provide an opinion regarding the cause of the employee’s condition relevant to the issues in this proceeding.[11]
Dr. Alm, in a letter dated February 22, 2023, opined that the employee’s three incidents were work related, referring back to the August 15, 2017, narrative report.[12]
The case came on before a compensation judge on June 6, 2023. The employee testified regarding the circumstances of her work on both July 13 and July 30, 2015. Deposition testimony from the employee’s coworkers regarding those incidents was received into evidence. The judge found that the employee did not suffer a work injury on either July 13 or July 30, 2015. The judge denied the employee’s request for benefits and dismissed the employee’s claim petition. 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.”[13] 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.”[14] Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed.[15] 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.”[16]
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.[17]
The employee alleges that the compensation judge erred in denying her claim petition because she suffered a work-related TBI on July 13, 2015, and another on July 30, 2015. In support of this contention, the employee relies on her long history of treatment and symptoms stemming from her compensable work injury on April 18, 2013. While the 2013 injury was compensable, that injury was determined to have been temporary and resolved. As a result, for the employee to prevail in her claim for benefits, she must demonstrate that she suffered an injury, independent of the 2013 injury. This is a question of fact for the compensation judge. Having closely examined the record, we conclude that substantial evidence supports the compensation judge’s determination that the employee did not suffer a work injury on either July 13 or July 30, 2015.
The employee contends that the compensation judge erred in finding that she did not suffer a TBI on July 13, 2015, as she struck her head against the wall of mailboxes. The compensation judge relied on eyewitness testimony of a coworker who saw the employee appear dizzy and reach out to steady herself using her mail cart and the mailbox wall. The coworker immediately intervened to assist the employee and testified that she did not strike her head that morning.[18] Resolution of this conflict in testimony between the employee and her coworker is the unique function of the trier of fact.[19] This court cannot reevaluate the credibility and probative value of witness testimony or choose different inferences than those taken by the compensation judge.[20]
There is no medical testimony in the record to suggest that a TBI can result in the absence of physical trauma. There is no dispute that the employee did not suffer any sort of blow to her head on July 30, 2015. The absence of such an impact is sufficient support for the compensation judge’s determination that the employee did not suffer a TBI at work on July 30, 2015.
The Workers’ Compensation Court of Appeals must uphold the factual findings of the compensation judge where those findings are supported by substantial evidence and were reached through application of the correct legal standard.[21] The compensation judge determined that the employee did not strike her head and therefore she did not suffer a compensable work injury on either date claimed. Because the judge’s decision is supported by substantial evidence, we affirm.
[1] April 25, 2017, Findings and Order. This findings and order was incorporated by reference in the current litigation. July 20, 2023, Findings and Order, Finding 1.
[2] T. at 61.
[3] T. at 110.
[4] Ex. 3, at 5-9.
[5] Ex. 7, at 5-6.
[6] Ex. A.
[7] “Zinger” is the word used by the employee to describe a sudden onset of head pain, accompanied by light and sound sensitivity. T. at 60-61.
[8] Zabel v. Gustavus Adolphus College, No. WC18-6185 (W.C.C.A. Oct. 12, 2018). While this report was not included as a hearing exhibit in the current litigation, the report was included with the claim petition for the litigation resulting in this appeal. The report is referenced here to provide context to Dr. Alm’s February 22, 2023, letter, which is part of Ex. A.
[9] Zabel v. Gustavus Adolphus College, No. WC18-6185 (W.C.C.A. Oct. 12, 2018).
[10] Ex. 7, at 4.
[11] Ex. A.
[12] Ex. A. See footnote 8.
[13] Minn. Stat. § 176.421, subd. 1(3).
[14] Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).
[15] Id. at 60, 37 W.C.D. at 240.
[16] Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).
[17] Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993), summarily aff’d (Minn. June 3, 1993).
[18] Ex. 3, at 5-8.
[19] Even v. Kraft, Inc., 445 N.W.2d 831, 42 W.C.D. 220 (Minn. 1989).
[20] Krotzer v. Browning-Ferris/Woodlake Sanitation Serv., 459 N.W.2d 509, 43 W.C.D. 254 (Minn. 1990).
[21] Brennan v. Joseph G. Brennan, M.D., 425 N.W.2d 837, 41 W.C.D. 79 (Minn. 1988); Redgate v. Sroga's Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988).