LISA A. MURPHY, Employee, v. ANOKA DRUG & GIFTS, and PHARMACISTS MUTUAL INS. CO., Employer-Insurer/Appellants, and HEALTHPARTNERS, Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
DECEMBER 13, 2002
CAUSATION - SUBSTANTIAL EVIDENCE; EVIDENCE - CREDIBILITY. Where the employee credibly testified that she slipped on ice or snow in a parking lot designated for employees, and the compensation judge reasonably found that the employer and insurer failed to show that the employee=s fall resulted from her pre-existing ataxia, substantial evidence supports the compensation judge=s determination that the employee=s injury arose out of her employment.
TEMPORARY PARTIAL DISABILITY - SUBSTANTIAL EVIDENCE. Substantial evidence supports the compensation judge's award of temporary partial disability benefits.
Determined by Stofferahn, J., Rykken, J., and Johnson, C.J.
Compensation Judge: Peggy A. Brenden
DAVID A. STOFFERAHN, Judge
The employer and insurer appeal from the decision of the compensation judge that the employee=s injury arose out of employment, and from the award of temporary partial disability benefits. We affirm.
On December 7, 2000, Lisa Murphy was employed as a clerk by Anoka Drug and Gifts. She was to start work at 9:00 a.m. on that date so she left her house at about 8:30 a.m.. Anoka Drug and Gifts is located in a shopping center and the employee parked in an area of the parking lot designated for employees. As the employee walked up a short incline from the parking lot to the sidewalk, she fell, sustaining a left hip fracture.
She came under the care of Dr. Robin Crandall, who diagnosed a Garden Type IV intra scapular fracture. Her condition required open reduction with internal fixation and the procedure was performed at Unity Hospital on December 7, 2000.
The employee alleged that she had fallen as a result of slipping on ice or snow in the parking lot or on the sidewalk and requested workers= compensation benefits. The employer and insurer denied liability contending that the employee=s fall was solely a result of the pre-existing condition of ataxia and that her injury did not arise out of her employment. The employee testified, and the medical records showed, that the employee had been diagnosed with ataxia, a hereditary degenerative neurological condition, in approximately 1981.
The employee filed a claim petition on December 29, 2000, which came for hearing before Compensation Judge Peggy Brenden on March 29, 2002. In her Findings and Order, served and filed April 29, 2002, the compensation judge found the December 7, 2000 fall to be a personal injury which arose out of employment. The employee was awarded temporary total and temporary partial disability benefits as well as reimbursement of medical expenses. The employer and insurer appeal.
1. Injury Arising Out of the Employment
On appeal, the issue is whether substantial evidence supports the finding that the employee=s fall arose out of her employment. The question, as presented to the compensation judge at hearing, was whether the employee fell because she slipped on ice or snow or whether she fell because of ataxia. As the employer and insurer conceded, if the employee fell because she fell on ice or snow, the injury would be work related. See, e.g., Starrett v. Pier Foundry, 488 N.W.2d 273 (Minn. 1992). Conversely, if the employee fell solely due to a personal condition unrelated to her employment, the resultant injury would not be compensable. For an injury to arise out of the employment, there must be a causal connection between the employment and the injury. See, e.g. Lange v. Minneapolis-St. Paul Metro. Airport Comm=n, 257 Minn. 54, 99 N.W. 2d 915, 21 W.C.D. 61 (1959).
The most direct evidence about the fall came from the employee. She testified that she slipped on snow or ice as she came up an incline from the parking lot to the sidewalk. She was not completely sure of the exact mechanics of her fall, but she concluded that she had fallen backwards because the back of her clothing was wet after the fall because of the snow. Although she had been diagnosed with ataxia since about 1981, she testified that she had no history of falling connected with the disease and had never lost her balance and fallen because of her ataxia.
At the hearing, the employer and insurer challenged the employee=s credibility. They argued, for example, that the employee had misrepresented the nature and extent of her self-employment as a barber, both before and after her injury. The employer and insurer also contended that the employee had given inconsistent stories of how she had fallen, and that the description of the fall she gave at the hearing was not believable.
A review of the record indicates that there was extensive cross-examination on these points and that the employer and insurer vigorously argued their position to the compensation judge. The compensation judge=s memorandum notes that she specifically accepted the employee=s testimony of slipping on ice and snow as credible. As this court has often stated, the assessment of witnesses= credibility is a unique function of the compensation judge, and will not be disturbed on appeal unless clearly erroneous. Even v. Kraft, 445 N.W.2d 831, 42 W.C.D. 220 (Minn. 1989).
The employer and insurer point to the history recorded by Dr. Craig Grorud, who attended the employee in the emergency room after her fall. Dr. Grorud=s notes give the following history: AI work at Anoka Drug Store and I was going down a ramp. I have ataxia and I slipped backwards and lost my balance going down an incline.@ As the compensation judge noted, however, the testimony of the employee was supported by the ambulance records on the date of the injury, which recorded that the employee Awas walking into Anoka Drug Store when she slipped on the ice and fell forward.@ In addition, at least part of Dr. Grorud=s history is demonstrably incorrect since photographs of the accident site introduced into evidence show that there was no ramp at the scene of the injury. Further, Dr. Grorud=s notes do refer to the employee having slipped, and this part of his history is not inconsistent with the testimony of the employee. Thus we cannot say that the compensation judge clearly erred in accepting the employee=s testimony that her fall resulted from slipping on ice or snow rather than from the effects of her ataxia.
We accordingly see no basis for reversal of the compensation judge=s credibility determination in this case. Whether there exists the requisite causal connection between the work activities and the disability is a question of fact. See Otto v. Midwest of Cannon Falls, 59 W.C.D. 25 (W.C.C.A. 1999); Rondeau v. Metropolitan Council, 58 W.C.D. 338, 342 (W.C.C.A. 1998). Substantial evidence supports the determination of the compensation judge that the employee=s injury of December 7, 2000 arose out of her employment.
2. Temporary Partial Disability
Before her injury, the employee did some barbering work at her home for about eight customers and earned $11.54 a week. She earned $217.00 a week at Anoka Drug, resulting in a total average weekly wage on the date of injury of $229.04. The employee was off work entirely due to her injury from December 7, 2000 until March 27, 2001. On March 27, 2001 the employee was able to resume doing hair care in her home, and the compensation judge awarded temporary partial disability benefits beginning as of that date. On May 13, 2001 the employee also returned to Anoka Drug on a limited basis, and the compensation judge awarded continuing temporary partial disability benefits from that date until February 2, 2002, when the employee=s condition worsened and she stopped working again.
Other than reiterating their appeal from the finding that the employee=s injury arose in the course and scope of her employment, which we have affirmed, the only specific objection the employer and insurer have raised to the award of temporary partial disability benefits is that the employee took four specific dates off work during this period when she would have been medically able to work, and that she was also taking Fridays off. They contend that the compensation judge erred in including those dates in the period for which temporary partial disability was awarded. We note, however, that there was evidence indicating that the employee=s pre-injury schedule at work for the employer was four days per week, and that she merely changed her schedule to take Fridays rather than Wednesdays off after the injury.
With regard to the four specific dates, two were holidays (December 31, 2001 and January 1, 2002), and the employee testified that she had routinely taken off holidays prior to her injury. Accordingly, her average weekly wage from Anoka Drug before the injury already reflected the lack of pay on holidays and her absence from work on similar unpaid holiday dates after the injury would not obviate her entitlement to temporary partial disability benefits for those particular pay periods. The other dates, January 17 and January 31, 2002, were taken off work in order to attend medical examinations, including one scheduled on behalf of the employer and insurer, and thus the compensation judge could reasonably conclude the time off was related to the employee=s work injury.
The temporary partial disability as awarded by the compensation judge was not clearly erroneous and is, accordingly, affirmed.