RICHARD D. PFANNENSTEIN, Employee/Appellant, v. EARTHWORKS EXCAVATING and ACUITY GROUP, Employer-Insurer, and ST. CLOUD ORTHOPEDIC ASSOCS. and MN DEP=T OF ECON. SEC., Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
MAY 6, 2004
CAUSATION - SUBSTANTIAL EVIDENCE; EVIDENCE - CREDIBILITY. The compensation judge=s finding that the employee was not a credible witness is not manifestly contrary to the substantial evidence of record, and combined with the opinion of Dr. Yellin, supports the judge=s determination that the employee failed to prove he sustained an injury arising out of his employment.
Determined by: Johnson, C.J., Wilson, J., and Stofferahn, J.
Compensation Judge: Jeanne E. Knight.
Attorneys: Gregory S. Walz, Walz Law Offices, St. Cloud, MN, for the Appellant. Richard W. Schmidt and Angela B. Poth, Cousineau, McGuire & Anderson, Minneapolis, MN, for the Respondents.
THOMAS L. JOHNSON, Judge
The employee appeals the compensation judge=s finding that he failed to prove he sustained a personal injury on December 6, 2002. We affirm.
Richard D. Pfannenstein, the employee, was employed by Earthworks Excavating, the employer, on December 6, 2002. The employee contended he sustained a personal injury to his left leg on that date arising out of his employment. The employer and Acuity Group, the insurer, deny liability for the claimed personal injury.
On April 29, 2000, the employee was injured in a non-work motorcycle accident. The employee was traveling 50 miles per hour when the motorcycle hit soft gravel and flipped over. The employee went to the St. Cloud Hospital where x-rays showed a fracture of the distal right clavicle and a complex fracture of the distal tibia with possible extension into the joint surface. He was seen by Dr. Kim Schaap in the emergency room, who diagnosed closed right clavicle and left tibia fractures. The doctor placed a long-leg cast on the employee=s left tibia and placed his right arm in a sling. The employee returned to see Dr. Schaap at St. Cloud Orthopedic Associates Ltd., on May 11, 2000. The doctor reported the employee had cut the cast down to a short-leg cast because it was uncomfortable. X-rays showed increased varus positioning of the left tibial fracture and Dr. Schaap told the employee he needed to remain in a long-leg cast. The employee went to the emergency room at the St. Cloud Hospital on the evening of May 11, complaining his cast was uncomfortable. A physician=s assistant split the employee=s cast on both sides. The employee returned to St. Cloud Orthopedics and saw Dr. Joseph Nessler on May 12, 2000. The doctor noted the employee had removed his cast and was adamant about not going into another cast. Dr. Nessler explained the need for external immobilization of the leg and the employee agreed to a surgical procedure. On May 15, 2000, the employee saw Dr. Schaap and told the doctor he was no longer willing to undergo surgery. Dr. Schaap stated, AI think he will have difficulty down the road with potential knee/ankle pain secondary to the varus tibial deformity.@ (Pet. Ex. E: St. Cloud Ortho.) The doctor applied another cast and released the employee to work with no weight bearing on his left leg and a maximum of ten pounds lifting with his right arm. The employee had no further treatment for his left leg.
Following his motorcycle accident, the employee returned to work for La Machine for about a year. He then drove a truck for Roger Geyer until he was hired to drive a dump truck for the employer. The employee testified that on December 6, 2002, he slipped and fell on his left leg while exiting the truck. The employee continued to work for the employer until the week ending December 15, 2002.
On March 3, 2003, the employee saw Dr. Kevin Stiles at the Foley Medical Center. The employee told Dr. Stiles he wished to apply for medical assistance from the county for injuries sustained in a motorcycle accident in April 2000. An x-ray showed a non-healing fracture of the distal tibia and a non-healing fracture of the right clavicle. Dr. Stiles recommended the employee see an orthopedic surgeon. On March 17, 2003, the employee returned to see Dr. Nessler complaining of increased pain in his left leg following a fall from a truck at work. The doctor reviewed the old x-rays and those taken by Dr. Stiles which showed an established nonunion of the distal left tibia and a malunion of the fibula with fifteen degrees varus at the ankle. The doctor diagnosed a malunion of the distal fibula and established nonunion of the distal tibia with about fifteen degrees varus at the ankle and recommended surgery. On April 15, 2003, Dr. Nessler performed an osteotomy of the distal fibula with internal fixation and a corrective osteotomy and take down of a nonunion of the distal tibia with internal fixation and bone bank grafting.
Dr. Robert Wengler examined the employee on August 19, 2003. An x-ray showed an established nonunion fracture of the distal third of the tibia secured with a screw and plates and an oblique osteotomy of the fibula bridged by a 6-hole plate. The doctor stated the employee developed a fibrous nonunion of the left tibia as a result of the motorcycle accident in April 2000, but was able to get by thereafter because of an intact fibula and a fibrous union at the fracture site. Dr. Wengler opined the employee later disrupted the fibrous union on December 6, 2002, causing it to become symptomatic and causing the need for surgery. The doctor opined the varus deformity at the fracture site was corrected but the fracture had not healed and probably would not heal without further care. Dr. Wengler recommended an intramedullary rodding and bone graft along with a fibular osteotomy. The doctor concluded the employee was totally disabled from any employment that required him to be on his feet and rated an 18 percent whole body disability.
Dr. Paul T. Yellin examined the employee on August 20, 2003, at the request of the employer and insurer. The doctor diagnosed a left distal tibial fracture with malalignment and nonunion. The doctor opined the employee=s current problems resulted from his motorcycle accident in April 2000. That incident, Dr. Yellin stated, caused a malaligned fracture which likely never healed. The doctor opined the incident on December 6, 2002, did not cause any temporary or permanent aggravation of the preexisting condition.
The employee filed a claim petition seeking workers= compensation benefits due to a personal injury on December 6, 2002. In a Findings and Order, filed November 7, 2003, the compensation judge found the employee was not a credible witness, and found the employee failed to prove he sustained an injury arising out of and in the course of his employment on December 6, 2002. The employee appeals.
The employee contends the compensation judge=s decision is contrary to the evidence. An x-ray of the employee=s left foot taken after the motorcycle accident showed a fracture of the left tibia but the fibula was intact. The x-ray taken by Dr. Nessler in March 2003, showed a malunion of the distal fibula as well as the established nonunion of the distal tibia. Prior to December 6, 2002, the employee testified he walked with a slight limp but was able to work. After that date, the employee testified he was in severe pain, could hardly walk and was unable to drive a truck. He testified he did not immediately seek treatment because he had no insurance or money to pay the medical bills. The employee=s brother, Mark, testified the employee limped a little bit after the motorcycle accident but was significantly worse after December 6. The employee=s nephew, Jason Fry, also testified the employee was much worse after December 6, 2000. The employee asserts the medical evidence, along with the testimony of the employee, Mark Pfannenstein and Jason Fry, compel a conclusion that the employee did sustain a personal injury on December 6, 2002. Accordingly, the employee asks this court to reverse the compensation judge=s decision. We are not persuaded.
Dr. Yellin noted the employee=s left fibula was intact following the motorcycle accident but an x-ray on March 17, 2003, showed it was then fractured. The doctor then opined that the employee=s problems in August 2003 were due entirely to the April 2000 motorcycle accident and not to any incident on December 6, 2002. Dr. Yellin does not explain how the fractured fibula resulted from the motorcycle accident. While such failure may affect the weight the compensation judge might give to his opinion, it does not render the opinion without foundation. Dr. Yellin=s opinion is, therefore, sufficient evidence to support the compensation judge=s decision.
Moreover, the compensation judge stated credibility was a significant issue in the case and found the employee was not a credible witness. AAssessment of witness credibility is the unique function of the factfinder.@ Tews v. Geo. A. Hormel & Co., 430 N.W.2d 178, 180, 41 W.C.D. 410, 412 (Minn. 1988). A finding based on credibility of a witness will not be disturbed on appeal unless there is clear evidence to the contrary. See Even v. Kraft, Inc., 445 N.W.2d 831, 835, 42 W.C.D. 220, 225-26 (Minn. 1989).
The employee testified that as he was exiting the truck on December 6, 2000, he slipped and fell. As he fell, he grabbed a door panel which ripped off the truck. The employee testified he fell on his left leg and felt immediate severe pain. He stated he immediately called his employer, Todd Dooley, on his cell phone and told him that he had torn the door panel off the truck. He did not, however, tell Mr. Dooley that he injured his left leg. The employee testified that following his injury, he was unable to work. The employer=s payroll records, however, reflect the employee worked 34.25 hours during the week ending December 8 and 17.5 hours the week ending December 15, 2002. Although the employee claimed to be in significant pain after December 6, 2002, he did not seek medical attention until March 4, 2003. When he saw Dr. Stiles, the employee gave no history of a work injury but stated he was seeking medical assistance for injuries sustained in the motorcycle accident of April 2000. Mr. Dooley testified he first learned of the employee=s claimed injury in March 2003 in a letter from the employee=s attorney. In her memorandum, the compensation judge stated that whenever Athe testimony or evidence is against the employee, he claims not to recall, or that he misunderstood, or that someone else erred.@ (Findings & Order at 5).
We have carefully reviewed the record and note a number of occasions in which the employee stated he did not recall medical advice given him after his motorcycle accident and disputed statements made by his treating physicians contained in medical records. The compensation judge=s credibility decision is supported by substantial evidence of record. Accordingly, the decision of the compensation judge must be affirmed.