KEENAN B. REESE, Employee/Appellant, v. EAST RANGE BUILDERS & SUPPLY, INC., and MINNESOTA ASSIGNED RISK PLAN/BERKLEY RISK ADM=RS, Employer-Insurer, and BLUE CROSS/BLUE SHIELD OF MINN., MN DEP=T OF HUMAN SERVS., and DAKOTA CLINIC-FOSSTON, Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
JANUARY 17, 2002
TEMPORARY TOTAL DISABILITY - SUBSTANTIAL EVIDENCE. Where the employee offered no evidence of more than one medical treatment, no evidence of being restricted, and, aside from his own testimony, no other evidence of disability at all over the course of nearly four years following his alleged work injury, the compensation judge=s denial of temporary total disability benefits for three months following the employee=s alleged work injury was not clearly erroneous and unsupported by substantial evidence.
TEMPORARY BENEFITS - FULLY RECOVERED. Where there was expert medical opinion that the employee=s work injury was a temporary aggravation that had resolved after three months without any residual disability or ongoing restrictions, the compensation judge=s denial of benefits four years later was not clearly erroneous and unsupported by substantial evidence, pursuant to Kautz v. Setterlin Co., 410 N.W.2d 843, 40 W.C.D. 206 (Minn. 1987).
Determined by Pederson, J., Rykken, J., and Wilson, J.
Compensation Judge: William R. Johnson.
WILLIAM R. PEDERSON, Judge
The employee appeals from the compensation judge=s denial of various benefits allegedly due as a result of a claimed low back injury on August 11, 1994. We affirm.
The facts in this case were hotly contested. Keenan Reese [the employee] alleges that he sustained an injury to his back when he fell a distance of ten to twelve feet off a roof on August 11, 1994, while employed as a roofer by Mr. Charles Bohnsach. Bohnsach was evidently uninsured for workers= compensation liability and employed as a subcontractor by East Range Builders & Supply [East Range], insured by the Minnesota Workers= Compensation Assigned Risk Plan, administered by Berkley Risk Administrators [Berkley]. According to his eventual trial testimony, the employee applied for the job and was hired by Bohnsach in late May or early June of 1994, after seeing a sign at a restaurant in Fosston, Minnesota. Bohnsach allegedly kept track of the employee=s hours, supplied a stapler and nail gun, and directed the employee to the locations where the work was to be performed. The employee testified that he was paid in cash, usually on Fridays. The employee further testified that the work crew usually consisted of himself, Bohnsach, and one other individual. On the date of his injury, however, the crew consisted of just the employee and Bohnsach. The employee claims that, on August 11, 1994, he was working on a one-story apartment building in Newfolden, Minnesota, when he fell backward off the roof, landing on his back. He testified that, as he was lying on the ground, some of the material he was working with fell on top of him. He also testified that Bohnsach saw him on the ground and was aware of the fall.
On August 12, 1994, when seen at First Care Medical Services in Fosston, the employee provided a history that he was employed by AEast Range Supply, Inc.,@ and that he fell ten to twelve feet off the roof of a building. He complained of pain and stiffness in his left shoulder and left hip and muscle spasms in his lower back. X-rays of the lumbar spine were reported as normal, and the employee was given an injection of Toradol and a prescription for Naprosyn and Norflex, with advice to follow-up at the clinic after the weekend. The employee testified that Bohnsach agreed to take care of the medical bill.
The employee claimed that he did not return to work for Bohnsach after August 11, 1994, and that he was Alaid up for a couple of months.@ However, the employee did not follow up at the clinic as directed and sought no other medical care for the alleged injury. On October 28, 1994, the employee obtained a job as a dishwasher at the Shooting Star Casino in Mahnomen, Minnesota.
Sometime during 1996, the employee apparently received correspondence from First Care Medical Services indicating that the medical bill for the treatment on August 12, 1994, had not been paid. The employee then contacted the Department of Labor and Industry for assistance. After determining that Charles Bohnsach was uninsured for workers= compensation liability, the Special Compensation Fund completed and filed a First Report of Injury for the alleged injury of August 11, 1994. Investigation apparently determined that Bohnsach had worked as a subcontractor for East Range, and the Fund requested East Range to submit the employee=s claim to its insurer. (Pet. Ex. B.) Although initially denying liability for the alleged injury (Pet. Ex. H), Berkley evidently reimbursed the employee for the 1994 medical bill on October 7, 1997. (Pet. Ex. G.)
On June 9, 1998, after almost four years without back treatment, the employee visited the Dakota Clinic in Fosston for back and shoulder pain. He advised the doctor that A[h]e has had more back pain recently. His job description apparently has changed in his job at the casino, so now he is doing more heavy work and lifting, being asked to unload trucks.@ The employee advised the doctor that he had had some low back pain as long ago as 1984 after a knee problem. The doctor prescribed some anti-inflammatory medication and recommended restrictions against mopping and lifting greater than twenty-five pounds.
On July 26, 1998, the employee completed a ADakota Clinic Work Injury Report,@ in which he described a back injury at the Shooting Star Casino on July 10, 1998. About two weeks later, on August 11, 1998, the employee provided a history of chronic back pain secondary to a serious motor vehicle accident in 1980, falling off a roof in 1994, and other vehicular trauma in between those two dates. The employee complained of muscle spasm in his back after recently performing heavy work in the kitchen at the casino. On physical examination, the doctor noted pronounced muscle spasm on the right between the T8 and L5 paraspinous musculature.
On October 12, 1998, the employee was seen in consultation by physiatrist Dr. Bonnie Dean, who noted that the employee had been receiving intermittent medical care for a low back injury related to a fall off a roof at a construction job in August of 1994. She recorded that the employee had several pre-existing conditions and that he had advised her that Asince 1982 he has had chronic daily pain.@ Dr. Dean concluded that the employee had a chronic lumbar strain/sprain and that permanent work restrictions were applicable. She felt the employee needed to be able to sit or stand alternately as necessary, limiting his sitting and standing to twenty to thirty minutes at a time, and limiting his lifting to no greater than twenty pounds on an occasional basis. X-rays taken at the time of this visit showed lumbar degenerative disc disease, with Asome narrowing of the fourth and fifth lumbar interspaces.@ Dr. Dean noted that A[the employee] says he will not be returning to work, that he quit on his own.@
In December 1998, the employee was apparently terminated from his job at the Shooting Star Casino. On April 5, 1999, the employee=s treating physician, Dr. Wesley Ofstedal, reported to the Mahnomen County Department of Human Services that the employee=s diagnosis was chronic low back strain with some degenerative disc disease. Dr. Ofstedal felt that the employee was unable to carry out heavy labor-type positions and recommended a Functional Capacity Evaluation.
A Functional Capacity Evaluation was conducted at the Fargo office of the Dakota Clinic on June 24 and 25, 1999. The therapist reported that the employee had demonstrated a decrease in trunk range of motion, poor tolerance of forward bending posture, and less than adequate balance. The therapist concluded the employee could do sedentary work and should consider some sort of attempt at returning to work as soon as possible to prevent any further loss of endurance for work activities.
On August 13, 1999, the employee filed a claim petition seeking payment of temporary partial disability benefits continuing from October 1, 1994, as a result of a back injury sustained on August 11, 1994. The employee named East Range Builders as his employer on the date of injury. East Range and its insurer denied liability for the employee=s claims.
On October 15, 1999, the employee was examined by orthopedist Dr. Gary Wyard at the request of East Range and its insurer. Based on a review of the employee=s medical records and his physical examination, Dr. Wyard opined that the employee=s injury of August 11, 1994, was a temporary injury in the nature of a sprain to the low back, lasting no more than three months. He reported that the temporary nature of the injury Ais verified by the medical records, and essentially the lack of any follow-up, ongoing care or treatment after the initial assessment, subsequent to the August 11, 1994, injury.@ Dr. Wyard concluded also that the employee was capable of working on a full-time or part-time basis without the need for any specific restrictions or limitations in the workplace. He attributed the employee=s complaints to Asignificant and overwhelming functional overlay.@
On October 3, 2000, Dr. Ofstedal reported to the employee=s attorney that the employee had experienced back pain to some degree since a motor vehicle accident in 1982 and that the employee=s back pain had continued throughout the 1980s. The doctor further stated that, following the 1994 injury, the employee had not been able to function and work. He opined that the employee had a 10% permanent impairment of the whole body, with 7% attributable to the 1994 fall from the roof and 3% due to the employee=s pre-existing condition.
The employee=s claim for benefits came on for hearing before a compensation judge on April 19, 2001. Benefits in dispute included temporary total disability benefits from August 11, 1994, to October 28, 1994, and continuing from November 1, 1998, temporary partial disability benefits between October 28, 1994, and November 1, 1998, benefits for a 7% permanent partial disability to the whole body, and medical expenses. In a Findings and Order issued June 18, 2001, the compensation judge denied the employee=s claims, concluding in part that the employee had failed to prove he was an employee of East Range, that he had failed to prove that he had sustained an injury arising out of and in the course of his employment at East Range, and that he had failed to give the required statutory notice of injury. The judge also found the employee was not a credible witness, that the employee=s alleged back problems were attributable to pre-existing degenerative problems, that his pain manifestations were grossly out of proportion to any objective findings on examination, and that the employee had conducted no work search, voluntarily withdrawing from the labor market. The employee 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 his Findings and Order, the compensation judge identified one of the issues in this case to be whether the employee had sustained an injury to his back arising out of and in the course of his employment on August 11, 1994, with East Range Supply. At the very outset of his explanatory Memorandum, the judge stated that he did not find the employee to be a credible witness, noting that Athere [was] a mountain of evidence in the record to confirm this finding.@ Other than his own testimony, the employee presented no Atangible@ evidence supporting the alleged employment relationship with East Range. Although the employee testified that he had been hired (by Bohnsach) in late May or early June of 1994, the judge noted that the employee did not list this job on his application at the casino that July. More importantly, the judge clearly did not accept the employee=s version of how he happened to be hired as a roofer. At Finding 2, the judge concluded,
Mr. Reese testified at the hearing that he saw a sign in a restaurant for work with East Range Supply. However, he had earlier indicated that he saw the ad in the newspaper. He was later confronted with the fact that no such ad ever existed. Mr. Reese then changed his story about a newspaper ad once he found it could be verified and his newspaper ad story no longer fit the facts. The Compensation Judge finds Mr. Reese was not a credible witness.
Based on this credibility assessment, the judge essentially concluded that he did not believe that the employee had sustained a work-related injury at East Range.
We find ample support in the record for the judge=s credibility determination. However, the employee also contends, and we agree, that there is some ambiguity in the judge=s decision, due to the judge=s focus on whether the employee had proved that he was an employee of East Range Supply, whether he had proved he had sustained an injury arising out of and in the course of his employment at East Range Supply, and whether he gave adequate notice of injury to East Range Supply. The issue in this case was not whether the employee was employed by and gave notice of a work injury to East Range, but whether he was employed by and gave notice of a work injury to Bohnsach.
It is apparent from the transcript of the hearing and from the pleadings of record that the parties did little to distinguish between East Range=s potential liability as an employer and its liability as a general contractor of an uninsured subcontractor. However, even if the judge erred in his focus on East Range Supply, as opposed to Bohnsach, and even if we accept that the employee did fall off a roof while working for Bohnsach, there is an alternative basis for the compensation judge=s denial of the employee=s claim -- his finding that the employee failed to prove any residual disability related to the claimed injury. Substantial evidence of record supports this determination.
Dr. Gary Wyard opined that the employee=s injury of August 11, 1994, was a temporary aggravation in the nature of a myofascial sprain/strain of his low back, lasting no longer than three months. Although the employee obtained medical care on August 12, 1994, for the alleged fall from the roof, he sought no further care for his back until June 9, 1998, nearly four years later. The employee offered no medical evidence that he was medically disabled or restricted from working between August 11, 1994, and October 28, 1994, and the judge did not credit the employee=s testimony regarding his inability to work during this period of time. Furthermore, the judge specifically adopted Dr. Wyard=s diagnosis of minimal degenerative disc disease of the lumbosacral spine and gross functional overlay unrelated to the August 11, 1994, injury. Although Dr. Ofstedal opined that the employee had a 7% permanent partial disability related to the 1994 injury, it is the compensation judge=s responsibility, as trier of fact, to resolve conflicts in expert testimony. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).
Given Dr. Wyard=s opinion of a temporary aggravation lasting no longer than three months, and the lack of evidence supporting the employee=s claim for temporary total disability benefits between August 11, 1994, and October 28, 1994, the judge=s denial of benefits in this case is affirmed. See Kautz v. Setterlin Co., 410 N.W.2d 843, 40 W.C.D. 206 (Minn. 1987) (where an employee is found medically able to return to work without restrictions, having suffered no residual disability from his work injury, there is no basis for payment of temporary wage benefits or rehabilitation services).
 At a pre-trial deposition taken on October 6, 1999, the employee testified that he obtained the job after responding to an ad in the Thirteen Towns Newspaper. Apparently, no such ad appeared in that paper. (T. 42-43; Resp. Ex. 6.)
 At trial, the employee did not offer any documentary evidence of his alleged employment relationship with Bohnsach.
 According to the First Care Medical Services emergency record, where the employee was seen on August 12, 1994, the incident occurred on Wednesday, August 10. (Pet. Ex. A(3).
 The employee completed an employment application for the casino on July 20, 1994. In the APast Employment@ section of the application, the employee did not name Bohnsach or East Range as one of his employers. (Resp. Ex. 7.)
 See personnel records from Shooting Star Casino. (Resp. Ex. 7.)
 In his brief on appeal, the employee narrowed his claim to temporary total disability from August 11, 1994, to October 27, 1994, and benefits for a 7% permanent partial disability.
 The assessment of witnesses= credibility is the unique function of the trier of fact. Even v. Kraft, Inc., 445 N.W.2d 831, 42 W.C.D. 220 (Minn. 1989), citing Brennan v. Joseph G. Brennan, M.D., 425 N.W.2d 837, 41 W.C.D. 79 (Minn. 1988). It is not the role of this court to make our own evaluation of credibility or of the probative value of conflicting testimony. Rather, we must give due weight to the compensation judge=s opportunity to observe the witnesses and to judge their credibility. Redgate v. Sroga=s Standard Serv., 421 N.W.2d 729, 40 W.C.D. 948 (Minn. 1988).
 In his Findings and Order, the compensation judge did not issue any findings on the relationship between Bohnsach and East Range. East Range evidently did not dispute the existence of a subcontractor/general contractor relationship between it and Bohnsach, but it denied knowledge of the alleged employment relationship between the employee and Bohnsach. (Pet. Ex. B.)
 As the employee points out, the judge did not expressly find that the employee did not fall off a roof while working, only that the employee was not injured while working for East Range Supply.
 East Range=s alleged liability in this case is based on Minn. Stat. ' 176.215. Subdivision 1 of that statute provides:
Subdivision 1. Liability for payment of compensation. Where a subcontractor fails to comply with this chapter, the general contractor, or intermediate contractor, or subcontractor is liable for payment of all compensation due an employee of a subsequent subcontractor who is engaged in work upon the subject matter of the contract.
The employee=s claim petition named East Range as the employer, and Bohnsach was not named as a party to the claim. East Range denied an employment relationship and put the employee to his burden of proving that he was an employee of their uninsured subcontractor and that he was disabled as claimed. It is not apparent from this record whether the employee=s actual theory of recovery in this case was presented to the court until the time of closing arguments. At that point, however, employee=s counsel clearly asserted that Bohnsach was the uninsured employer and that East Range=s liability arose from its standing as a general contractor.