BEVERLY MILTON, Employee, v. USX CORP., SELF-INSURED, Employer/Appellant, and MN DEP=T OF LABOR & INDUS./VRU and MN DEP=T OF ECONOMIC SEC./RI, Intervenors.
WORKERS' COMPENSATION COURT OF APPEALS
MAY 8, 2000
CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence, including lay testimony, medical records and expert medical opinion, supported the compensation judge=s determination that the employee sustained a work-related injury to her right hand and wrist on May 30, 1998.
Determined by Wheeler, C.J., Wilson, J., and Pederson, J.
Compensation Judge: Donald C. Erickson
STEVEN D. WHEELER, Judge
The self-insured employer appeals from the compensation judge=s determination that the employee sustained a work-related injury to her right hand and wrist on May 30, 1998. We affirm.
As of the date of the hearing below in 1999, the employee, Beverly Milton, was 34 years old, was five feet four inches tall, and weighed 105 pounds. She began working for the self-insured employer, USX Corporation, in June 1994. On May 30, 1998, the employee was working as a production truck driver for the employer, and had been assigned to drive a 260-ton Euclid Production Truck, hauling ore. (Findings 2, 4, 6 [unappealed]; Exh. I at 1-11.)
According to the employee=s testimony, after lunch on that date, the employee had driven a load to one of the employer=s crushers, and was preparing to back up to the crusher. While lowering her side window for a better view through the rear view mirror, and thus holding the steering wheel of the truck only with her right hand, she pressed the accelerator to power the wheels and Athe steering wheel let go.@ The employee testified that when this happened, she felt a Asnap@ in her right wrist. She finished her shift without further problems, but about an hour after she got home that night her wrist began to hurt. (T. 37-38; Exh. I at 14-21.)
At work on the following day, May 31, 1998, although driving a different truck, the employee found that the longer she drove the more her wrist bothered her. After discussing her wrist pain with two co-workers who were designated as Afirst responders,@ the employee reported to her shift production coordinator, Bill Gustafson, that she had injured her wrist the previous day at work. Mr. Gustafson advised her to wait until the next day to fill out an incident report since it was late in the day and to do so yet that day would involve overtime. (T. 39-40; Exh. I at 22-23; Findings 9-10 [unappealed].)
On June 1, 1998 the employee started her shift but couldn=t continue driving because of the pain in her wrist. She contacted her team leader, William Bernard, and told him she had injured her hand two days earlier and needed to make out an accident report. According to Mr. Bernard=s testimony, the employee told him that the accident had occurred when Ashe was stopped, waiting in line to make a turn, her turn . . . to back into the crusher . . . she went to make the turn . . . the wheel snapped and snapped her wrist.@ The employee and Mr. Bernard went to the mine office where Mr. Bernard filled out a supervisor=s accident report and forwarded it to his supervisor. (T. 40- 41; Exh. I at 24-26; Exh. J at 42-46.) The report contained this description of the incident:
While Astopped@ in line at #4 crusher, the driver made an attempt to turn the wheels to ready the truck to make her turn. When driver pulled on the steering wheel, she felt a snap on the top of her right hand.
The employee was then sent to the dispensary where she was seen by Dr. R. W. McBride. Dr. McBride diagnosed tendinitis of the right second finger. He applied a wrist splint and recommended that the employee rest her wrist. The doctor completed an accident report, which recited this history:
I was backing up to the crusher (in 592) turning the wheel and felt and [sic] snap in (R) wrist. Now has sensation of hand being Aon fire@ and pain with flexion or extension. Unable to lift with it. Has prickly sensation in (R) index finger. No previous injury to wrist.
In a space on the accident report form for work restrictions, the doctor wrote ANone written. No answer at her supervisor. Pt will discuss [with] the supervisor and call me.@ (Exh. Q; Finding 12 [unappealed].)
The employee did not perform any more truck driving duties on June 1, 1998. She called her own physician, Dr. T. Scott Douglass, and was able to make an appointment to see him that afternoon. (T. 41.) She left work at 12:30 p.m. to attend the appointment with Dr. Douglass. (Exh. I, Depo. of EE, 11/19/98, pp. 26-28.) Dr. Douglass recorded that the employee=s injury had occurred when Ashe was operating a production truck, and was attempting to back the truck up to the crusher; she went to straighten the wheel, and it Awasn=t in power@ and she felt a snap in her right wrist on the dorsum of her right wrist.@ (Exh. G, notes of 6/1/98.) Dr. Douglass examined the employee=s wrist and diagnosed a strain/sprain of the right wrist. He fitted her with a more comfortable wrist splint and prescribed Relafen for pain. He restricted the employee to very light work involving the right hand and wrist, with no more than five pounds grasping, lifting and carrying, and no repeated bending or twisting of the wrist. He stated that the employee was not able to safely operate a commercial vehicle. Dr. Douglass also referred the employee to physical therapy, which started on June 3, 1998. A follow-up appointment was scheduled for June 8, 1998. (Exh. J, transcript of arbitration hearing, 3/25/99, pp. 159-160; Findings 13 - 15 [unappealed].)
On June 2, 1998 the employee worked at a blast site on the ground and did not drive a truck. She was not scheduled to work the following day, June 3. The employer=s supervisor called her at home in the evening on June 2, 1998 and asked her if she would work the shift from 4:00 p.m. on June 4 to midnight, performing Alunch running@ rather than working her normal midnight shift. The employee agreed to this. When she reported to work on June 4, 1998, she was told that because the company=s doctor had not restricted her from driving duties, she would be expected to drive. After about two hours on the job, the employee advised her supervisor that she could not continue driving because her hand could not take it. (T. 162; Finding 17 [unappealed].)
The employee was seen on June 5, 1998 by Dr. W. A. Schandorf who diagnosed tendinitis and took the employee off work for two weeks. She was seen again by Dr. Douglass on June 19, 1998, and was released to return to work with restrictions, including limited lifting and no driving of a production truck. (Exh. H; Findings 19-20 [unappealed].)
The employee underwent an examination by Dr. Thomas Litman on behalf of the self-insured employer on June 29, 1998. He recorded as the history of the injury that the employee was Adriving a production truck on May 30, 1998, while turning the wheel the >power hit the wheel= and the >right wrist snapped.=@ On examination, the employee exhibited pain on pressure over the dorsal radial and radial volar aspect of the right wrist. Sensation was diminished in the right thumb and index finger dorsally and volarly. Dr. Litman diagnosed a sprain of the right wrist, and agreed that she should be restricted from operating a production truck and that she should be permitted only light duty use of her right hand and wrist. (Exh. 10: 6/29/98; Finding 21 [unappealed].)
The truck the employee had been driving at the time of the alleged injury was leased to the employer by Road Machinery and Supply (ARMS@). On August 6, 1998, at the request of the employer, RMS conducted various tests on the steering system of the truck. During these tests, no kickback of the steering wheel was observed. As a result of the testing, RMS was of the opinion that the steering could not have malfunctioned in the manner alleged by the employee. (Exh. 4; Findings 8, 22 [unappealed].)
On August 17, 1998 the employer sent Dr. Litman a letter enclosing the RMS testing conclusions and apparently asking the doctor whether his opinion would change if he were asked to assume that there had been no jarring or kickback of the steering wheel on the production truck driven by the employee on the date of the alleged injury. (Exh. 10: 8/19/98.)
On August 18, 1998 the employer placed the employee on a five-day suspension pending discharge, for allegedly Afalsifying information concerning a reported accident.@ (Finding 26 [unappealed].)
On August 19, 1998 Dr. Litman responded to the employer=s letter and stated that, assuming that the information provided were true, then Ait is my opinion that Ms. Milton=s current wrist problems must be due to some other cause than she described to me as having occurred in her employment for the USX Corporation on May 30, 1998.@ (Exh. 10: 8/19/98.)
On August 24, 1998, the employer terminated the employee, alleging that she had filed a false claim that she had injured her wrist at work. (Finding 28 [unappealed].) The employee filed a grievance contesting her discharge. The employee filed a claim petition seeking workers= compensation benefits on August 28, 1998. The self-insured employer answered on September 14, 1998 denying a work injury. (Judgment Roll.)
The employee was eventually referred to Dr. Mark Fischer, an orthopedic surgeon, in October 1998. On December 16, 1998, Dr. Fischer conducted arthroscopic surgery on the employee=s right wrist. During the surgery, a partial tear of the scapolunate ligament was observed and pinned. (Findings 29, 31 [unappealed.].)
The employee returned to work for the employer on June 22, 1999 after a reinstatement decision was issued following arbitration of the employee=s discharge from work. The arbitration decision awarded the employee back pay for all periods when she was able to work when there was work available within her restrictions. Determination of these issues was remanded to the employer and the union/employee. (Pet. Exh. J; Findings 30, 32-34 [unappealed.)
On July 21, 1999 a hearing was held before a compensation judge of the Office of Administrative Hearings to determine whether the employee had sustained a personal injury to her right hand and wrist on May 30,1998 arising out of and in the course of her employment. Following the hearing, the compensation judge found that the employee had sustained the alleged work injury. The self-insured employer appeals.
STANDARD OF REVIEW
On appeal, this court must determine whether the compensation judge's findings 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) (1992). Substantial evidence supports the findings if, in the context of the record as a whole, 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 the evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings must be affirmed. Id. at 60, 37 W.C.D. at 240. Similarly, "[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed." Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975). Factfindings may not be disturbed, even though this court might disagree with them, "unless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole." Id.
The self-insured employer argues on appeal that the compensation judge=s finding, that the employee injured her wrist at work on May 30, 1998, is unsupported by the evidence. Specifically, the employer argues that, for the employee=s claim to have been true, each of the following must have occurred: 1) subsequent investigation by RMS would have revealed a problem with the truck=s steering system; 2) the employee would have noted steering problems with the truck on the end of shift report which she filled out on the day of the injury; 3) other drivers would have reported the same problem with the steering; 4) the employee would have reported the injury on May 30, rather than the following day; 5) the employee would not have Afabricated an injury@ on June 4, 1998; and 6) all of the reports describing how the injury occurred would have been consistent. (Appellant=s Brief at 9-10.)
The issue on appeal is not whether the compensation judge was correct in his factual conclusion but is whether there was adequate evidence in the record to support his finding. The compensation judge considered the testimony of the employee and of the employer=s witnesses, as well as the medical reports and other documentary evidence. He simply found the evidence supporting the employee=s position more compelling. Among other things, that evidence included the employee=s testimony that her wrist was not particularly painful until after she had gone home from her shift. She reported the injury the next day at work. The compensation judge heard the employer=s arguments that this was a suspicious and unusual circumstance, but was not persuaded that the employee had not injured herself at work. His failure to be convinced of the employee=s culpability cannot be said to be clearly erroneous. Nor was it unreasonable for the judge to conclude that the recorded history of the incident did not show such inconsistency as to require a finding that the employee had fabricated the incident. Also, contrary to the employer=s contentions, there was testimony by other employees to the effect that this particular truck had exhibited steering problems at various times. The testing by RMS took place several months after the date of injury and the compensation judge could have concluded that it was not so timely or thorough that every possible condition which might have affected the steering of the truck had been replicated and eliminated during the tests.
In the end, the result in this case rested on the credibility of the employee=s testimony. Making that determination is a matter entrusted in the first instance to the compensation judge. The judge observed the employee=s demeanor during her testimony and accepted her account of the injury. As a general rule, this court will affirm a finding which rests upon the compensation judge=s appraisal of the credibility of witnesses, unless that finding is clearly erroneous. Even v. Kraft, Inc., 445 N.W.2d 831, 42 W.C.D. 220 (1989). As substantial evidence supported the compensation judge=s findings we affirm. Minn. Stat. ' 176.421, subd. 1(3) (1992).
 The employee requested that penalties be imposed because the self-insured employer=s appeal was frivolous. We do not find the appeal to be so lacking in merit to be considered frivolous. The employer makes a strong argument attacking the employee=s credibility. We decline to award penalties.
 On instructions from Mr. Bernard=s supervisor, Mr. Bernard subsequently prepared and substituted a new Asupervisor=s report of injury@ which replaced the quoted language with the following:
AClaims@ while parked in line at #4 crusher, driver made an attempt [sic] to turn the wheels. When driver pulled on the steering wheel, felt a snap on the top of her right hand.
* Not reported on 5-30-98. Mentioned to foreman on 5-31. She drove truck 5-30 and 5-31. On 6-1 she wanted to go to dispensary and accident report was made out.
(Exh. J at 45-48; Exh. 6.)
 We have carefully reviewed the detailed comparison of the positions taken by the employee at various times. These inconsistencies were pointed out to the compensation judge. While some triers of fact may have found these comparisons so troubling as to have accepted the employer=s argument, others may not have. We cannot say that the employer=s detailed comparisons are such compelling evidence of inconsistent testimony that we must find that the compensation judge was clearly erroneous in determining the employee to be credible.