JACK C. OLDING, JR., Employee, v. FACTORY MOTOR PARTS and ATLANTIC MUT. COS., Employer-Insurer/Appellants, and FACTORY MOTOR PARTS and CNA/VALLEY FORGE INS. CO., Employer-Insurer, and STATE FARM MUT. AUTO. INS. CO., Intervenor.
WORKERS= COMPENSATION COURT OF APPEALS
FEBRUARY 7, 2000
ARISING OUT OF & IN THE COURSE OF - SUBSTANTIAL EVIDENCE. Where the employee was injured exiting the employer=s parking lot after delivering his release to return to work after his work injury, the compensation judge=s conclusion that the employee=s injury arose out of and in the course of his employment was not clearly erroneous and unsupported by substantial evidence.
Determined by Pederson, J., Wilson, J. and Johnson, J.
Compensation Judge: Jeanne E. Knight
WILLIAM R. PEDERSON, Judge
The employer and insurer Atlantic Mutual Companies appeal from the compensation judge's conclusion that the employee=s October 1998 injury arose out of and in the course of his employment. We affirm.
On June 1, 1998, Jack Olding, Jr., sustained a work-related injury to his neck while working as a parts driver with Factory Motor Parts [the employer], which was insured at the time against workers= compensation liability by Atlantic Mutual Companies. At the time of his injury Mr. Olding [the employee] was forty years old and was earning a weekly wage of about $408.00. The employer and Atlantic Mutual Companies [jointly, Atlantic] accepted liability for the injury and commenced payment of various benefits, including medical costs associated with a hemilaminectomy and foraminotomy at C5-6 of the employee=s spine that was performed on September 9, 1998, by Dr. Max Zarling.
The employee was off work for several weeks following his surgery. On September 24, 1998, the employee and QRC Jean Berry executed an R-2 Rehabilitation Plan, in which the employee=s goal was identified as a return to work with the employer at the pre-injury job, with accommodations for the employee=s injury. About this same time, the employee contacted the employer and informed the employer that he had an appointment to see Dr. Zarling on October 12, 1998, and that he anticipated that Dr. Zarling would release him to return to work. On October 2, 1998, the employee=s supervisor and warehouse manager, Gordon Fredrickson, wrote to the employee Ain regard to your work related injury of June 1, 1998.@ Mr. Fredrickson indicated that the employer was ready Ato provide you with [a] transitional modified job that would comply with any restrictions or limitations that your physician recommends@ and that such a job was Aavailable for you immediately upon release from your physician.@ Near its conclusion the letter stated, AWe would like to hear from you by October 12, 1998. Please call me . . . to discuss this letter and anticipated date of your return to work.@ The employee called Mr. Fredrickson a few days later and confirmed the availability of either light-duty work in the event Dr. Zarling should continue some restrictions or his original job in the event Dr. Zarling should release him to work without restrictions.
On October 12, 1998, the employee saw Dr. Zarling to review his restrictions and prospects for returning to work. At the appointment, the employee requested and was granted a release to return to regular duty at his driving job without restrictions beginning October 13, 1998. Dr. Zarling=s Health Care Provider Report on that date indicated that the employee would reach Maximum Medical Improvement [MMI] from his June 1, 1998, work injury with a related permanent partial disability of 11% of the whole body on October 13, 1998.
Following issuance of Dr. Zarling=s release to work, the employee drove out to the employer=s premises and presented his release to return to work to Mr. Fredrickson. After some discussion of potential work hours, Mr. Fredrickson called the employer=s personnel officer, Abby Renslow, who was evidently off work and at home at the time, and the details of the employee=s return to work the following day were apparently established. Upon leaving the employer=s premises but while still in its parking lot, the employee was involved in a motor vehicle accident in which a tool box behind him in his vehicle flew forward and struck him just behind his right ear. The employee was taken immediately to an emergency room and was apparently referred from there to Dr. Zarling, who in turn referred the employee to family physician Dr. Bruce Richardson. On the date of the accident, the employer was insured against workers= compensation liability by CNA/Valley Forge Insurance Company [jointly with the employer, CNA].
On October 13, 1998, the employee was seen by Dr. Richardson=s physician=s assistant, Elizabeth Ezell, who took him off work with prescriptions for medication and physical therapy for his neck and thoracic back. The employee=s subsequent treatment came to include deep tissue massage, biofeedback, and emergency room shots of Demerol for severe headaches. The headaches eventually proved chronic, and the employee was eventually referred to neurologist Dr. Nadeem Iqbal. On December 17, 1998, Dr. Iqbal concluded that the headaches were Amost likely triggered by head injury,@ and on January 28, 1999, Dr. Zarling concluded that the employee=s neck was doing quite well and that he doubted that the headaches were related to the neck directly. The parties agreed at the hearing below that employee was temporarily totally disabled from the date of his motor vehicle accident, October 12, 1998, through the date of the hearing and that all of his treatment during that time was reasonable and necessary.
On October 13, 1998, the day after the employee=s motor vehicle accident, Atlantic=s claims representative signed the R-2 Rehabilitation Plan that had been executed earlier by the employee and his QRC. On that same date, Atlantic filed a Notice of Intent to Discontinue [NOID] wage loss benefits, based on Dr. Zarling=s release of the employee to return to work without restrictions on that date. On October 26, 1998, the employee filed a Claim Petition, alleging against both Atlantic and CNA entitlement to temporary total and permanent partial disability benefits and medical benefits, consequent to work-related injuries to his neck and back on both June 1, 1998, and October 12, 1998. The employee and Atlantic met in a settlement conference on November 9, 1998, pursuant to Atlantic=s NOID. On November 16, 1998, CNA filed an Answer to the employee=s claim petition, denying liability on grounds that the employee was not acting in the course and scope of his employment on October 12, 1998, or, in the alternative, on grounds that any disability and need for medical care after October 12, 1998, were consequences of the employee=s June 1, 1998, work injury. On November 17, 1998, an administrative decision was issued granting Atlantic=s request to discontinue benefits, and on November 28, 1998, the employee filed an Objection to Discontinuance. On November 30, 1998, Atlantic filed an Answer to the employee=s claim petition, denying liability on grounds that the employee=s current disability was causally unrelated to his cervical injury of June 1, 1998, from which, they alleged, he had fully recovered.
The employee=s Objection to Discontinuance and Claim Petition were consolidated and came on for hearing on March 18, 1999. Issues at hearing included whether the employee=s injury of October 12, 1998, arose out of and in the course of his employment. By Findings and Order filed May 21, 1999, the compensation judge concluded in part that the employee=s October 12, 1998, injury did arise out of and in the course of his employment. Atlantic appeals.
STANDARD OF REVIEW
In reviewing cases on appeal, the Workers= Compensation Court of Appeals must determine whether Athe 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 (1992). Substantial evidence supports the findings if, in the context of the entire record, Athey 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, A[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). Findings of fact should not be disturbed, even though the reviewing court might disagree with them, Aunless 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.
In Finding 10, the compensation judge concluded that the employee=s action in presenting his return-to-work note in person was not an action prohibited by the employer. Contesting this finding, Atlantic argues first that the employee=s delivery of the note in person was not only unrequested but Ain total disregard of his Employer=s instructions and wishes.@ In support of that assertion, Atlantic cites Mr. Fredrickson=s statement in his October 2, 1998, letter to the employee, that the employer Awould like to hear from you by October 12, 1998. Please call me . . . to discuss this letter and anticipated date of your return to work.@ We are not persuaded.
Mr. Fredrickson expressly acknowledged in testimony that he did not specifically instruct the employee not to present his release in person, and he clearly did not send the employee away when the employee did present the release in person. Nor is there any evidence that Mr. Fredrickson either expressly or implicitly criticized the employee for any procedural or other impropriety when he did so. Indeed, when Mr. Fredrickson was asked at hearing A[w]hat was your reaction when you saw Mr. Olding in the plant@ on October 12, 1998, Mr. Fredrickson initially testified, AWell, I would have been surprised that he was there@ (emphasis added). The employee testified expressly to the contrary, that Mr. Fredrickson did not express any surprise to see him. Nor is there any evidence, aside from Mr. Fredrickson=s testimony, to support Atlantic=s contention that Ait is the Employer=s standard procedure to require injured Employees to present the medical authorizations on the day they return to work.@ We conclude that it would not have been unreasonable for the compensation judge to find the employee=s testimony as to these and certain other issues more credible than Mr. Fredrickson=s testimony. See Brennan v. Joseph G. Brennan, M.D., 425 N.W.2d 837, 839-40, 41 W.C.D. 79, 82 (Minn. 1988) (assessment of a witness's credibility is the unique function of the trier of fact), citing Spillman v. Morey Fish Co., 270 N.W.2d 781, 31 W.C.D. 187 (Minn. 1978). Nor would it have been unreasonable for the judge to conclude that the employee=s action in presenting his release in person was neither prohibited nor unreasonable under the circumstances.
Atlantic argues also that the employee=s parking-lot injury was outside the course of his employment because Ahe performed no work while on the premises@ and A[t]here was no benefit to the Employer by the Employee=s action of bringing the slip to the premise[s]@ (emphasis in the original). ATo the contrary,@ Atlantic argues, Athe Employee=s actions were detrimental to the Employer=s business objectives,@ in that, A[b]y bringing the slip in person, he not only interrupted and disrupted the business of Mr. Fredrickson, but he also interrupted Ms. Renslow who was at home that day@ and also interfered with the duties of his co-workers. Again we are not persuaded.
Although the employee may have been able to report his release-to-work information by telephone instead of in person, there is ample evidence of record to support a conclusion that the employee=s presentation of that information as expeditiously as possible was activity that served the interests of and so provided a benefit to the employer. Mr. Fredrickson=s letter of October 2, 1998, expressed some urgency that the employee provide the information as soon as he got it, and Mr. Fredrickson did not deny that suggestion in his testimony. Nor would it have been unreasonable for the employee to elect to deliver the information in person, perhaps presuming that certain details of scheduling, etc., might be worked out even more efficiently and quicker that way. It appears evident from testimony that, contrary to Atlantic=s assertion, Mr. Fredrickson did not interrupt what he was doing to talk with the employee but instead completed it first, with little more and perhaps with even less distraction than he would have had had the employee telephoned him with the information. Moreover, it would be reasonable to presume that Ms. Renslow would have to have been disturbed at home regarding the scheduling matters that Mr. Fredrickson called her about regardless of whether the employee had called in the information that day or delivered it in person. Nor is there any reason why the compensation judge, absent other testimony or evidence, should have credited Mr. Fredrickson=s testimony that the employee materially distracted his coworkers in their work over the employee=s contrary testimony, that his communication with those coworkers was very brief and during break time. See Brennan, 425 N.W.2d at 839-40, 41 W.C.D. at 82.
Atlantic spends about two pages of its brief distinguishing the case of Wortley v. University of Minnesota, 40 W.C.D. 379 (W.C.C.A. 1987), which the employee cites in support of his position. The Wortley decision is not the precedent upon which the employee most depends, however, and it is cited by the compensation judge only in passing, to support the assertion that an injury occurring while the employee is on the employer=s premises collecting documents from the personnel department Amight@ be compensable. The general rule with regard to an injury to an employee who is on the employer=s premises but not during the employee=s regular work hours is that such injuries are compensable if the employee=s presence on the premises is reasonably related to the employment relationship and is not wholly personal to the employee. See, Blattner v. Royal Order of Moose, Moose Club Lodge No. 1400, 264 Minn. 79, 117 N.W.2d 570, 22 W.C.D. 323 (Minn. 1962) (compensation was affirmable to an employee who was injured on the employer=s premises a short while after his work hours, having stayed after his shift to catch his regular ride home with a co-employee); see also Johnson v. Toro Co., 331 N.W.2d 243, 35 W.C.D. 725 (Minn. 1983) (compensation was affirmable to an employee who was injured on the employer=s premises while on a nonwork-related medical leave, having come to the employer=s premises to pick up the free turkey that the employer gave each year to each of its employees).
The employee apparently relies most on the precedent in Berry v. McLeod County, 46 W.C.D. 329 (W.C.C.A. 1991). As is the case here, there was evidence in Berry that the employee was on the premises of the employer to discuss a return to work at the time he was injured. Although the employee in Berry was apparently invited expressly to come in to the employer=s premises to discuss his return to work rather than simply to Acall,@ we conclude that it was not unreasonable for the judge in this case to conclude that Mr. Fredrickson=s invitation, in its context, did not preclude the employee=s providing the information in person and therefore did not preclude compensation for the injury that the employee sustained in the process of that delivery.
Atlantic devotes a separate section of its brief to arguing that A[e]ven if the employee=s October 12, 1998 automobile accident occurred in the course and scope of his employment, his deviation on the travel route between Dr. Zarling=s office and his home bars his recovery@ (emphasis added). After conceding that an injury received while traveling for work-related medical treatment may be compensable, Atlantic goes on to cite Butler v. Hennepin County Home Sch., slip op. (W.C.C.A. Feb. 6, 1995), to support its follow-up assertion that Awhere the accident occurs when the Employee has deviated from the direct route of the [employment-]related purpose, the injury falls outside the course and scope of employment@ (emphasis added). The fault in Atlantic=s argument is in part illustrated by the illogical relationship of the two phrases that we have underscored; a single injury may not occur at once both within and outside the course of employment. Moreover, personal deviation cases are not applicable to on-premises injuries. As the judge=s memorandum expressly indicates, AThe Compensation Judge did not consider the parking lot injury as part of the doctor=s visit. Compensability was found on a different basis: that delivering the release slip to the employer was incidental to [the employee=s] employment.@ The circumstances in Butler are therefore distinguishable. In Butler the employee was on an employment-related errand off the employer=s premises when he was injured, whereas in the present case the employee was present at his place of employment when he was injured.
The employee in this case was injured while he was in the process of conducting employment-related business. In such circumstances it was not unreasonable for the compensation judge to conclude that the employee=s injury was in the course and scope of his employment. Therefore we affirm that conclusion. See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.
 The parties have stipulated to these facts, but they have disagreed as to the cause of the employee=s disability and his need for the treatment. Unappealed Finding 17 of the compensation judge indicates that the employee=s intervening automobile insurance company has paid $5,000.00 in weekly benefits through March 8, 1999, and $1,932.25 in medical expenses on the employee=s behalf, for all of which it seeks reimbursement. Unappealed Finding 18 of the judge indicates in part that the employee has also incurred additional, unpaid, medical expenses in the amount of $951.26, excluding some possible prescription expenses.
 Atlantic also appeals nominally from the judge=s conclusions that the employee=s current disability is a result of the injury of October 12, 1998, and that that injury was consequent to his injury of June 1, 1998. Atlantic has not substantively addressed these issues in its brief, however, and therefore they are deemed waived. See Minn. R. 9800.0900, subp. 1 (A[i]ssues raised in the notice of appeal but not addressed in the brief shall be deemed waived and will not be decided by the court@).
 Later, upon examination by counsel for Atlantic, Mr. Fredrickson testified more definitely that he was surprised to see the employee on that date.
 This is notwithstanding the several reasons why such a policy might be useful that were recited by Mr. Fredrickson in his testimony and reported by Atlantic in its brief.
 Atlantic spends a whole section of its brief contending that the employee=s testimony as to certain issues - - his route from Dr. Zarling=s office to the employer=s premises on October 12, 1998, his purpose in going to the employer=s premises on that date, and the medical history of his headaches - - was either too indefinite or too contrary to Mr. Fredrickson=s testimony and other evidence to have been credited by the compensation judge. Only the second of those issues pertains directly to matters here on appeal. Deferring again to the compensation judge=s unique perspective in the assessment of a witness=s testimony, we conclude that the judge=s crediting of the employee=s testimony as to his purpose in being on the employer=s premises on October 12, 1998, was not unreasonable.
 See Aaserud v. National Food Stores, Inc. 32 W.C.D. 525 (W.C.C.A. 1980); see also Smith v. Fenske=s Suburban Sanitation, 266 N.W.2d 892 (1978); Hennen v. The Gillette Company, slip op. (W.C.C.A. Feb. 6, 1996).
 Although the question of which insurer might be liable for any injury on October 12, 1998, found to be work related appears to have been at issue before the compensation judge, Atlantic does not argue on appeal that CNA should be liable for the injury that we have affirmed as being reasonably within the course and scope of the employee=s employment.