KENNETH V. EBERT, Employee, v. YELLOW FREIGHT SYS., SELF-INSURED/GALLAGHER BASSETT SERVS., Employer/Appellant, and CENTRAL STATES SE&SW AREAS H&W PENSION FUNDS, and ABBOTT NORTHWESTERN HOSP., Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
MAY 15, 2006
ARISING OUT OF & IN THE COURSE OF. Where the medical evidence established that the employee, who was a traveling employee, contracted a staph or strep infection while on a work trip, and where it was reasonable for the compensation judge to conclude that the employee contracted the infection from a dirty motel room, the judge properly determined that the cellulitis and toxic shock syndrome resulting from the infection were compensable.
Determined by Wilson, J., Stofferahn, J., and Pederson, J.
Compensation Judge: Gary P. Mesna
Attorneys: Joseph T. Herbulock, Hauer, Fargione, Love, Landy & McEllistrem, Minneapolis, MN, for the Respondent. Michael J. Patera, Buffalo, MN, for the Appellants.
DEBRA A. WILSON, Judge
The self-insured employer appeals from the compensation judge=s decision that the employee contracted cellulitis and toxic shock syndrome during a work trip and that those conditions are compensable. We affirm.
The employee is an over-the-road truck driver for Yellow Freight System [the employer]. On April 30, 2004, the employee left the employer=s Owatonna terminal at about 11:00 p.m. to drive to Chicago. Upon arriving in Chicago on May 1, 2004, at about 6:30 a.m., the employee checked into the Bridgeview Hotel, which was close to the truck terminal. The employee was required by the employer to stay at the Bridgeview, and the employer paid for the room. According to the employee, the carpets in the hotel were old and dirty, and sanitation was not what one would hope for. The employee showered and then slept, waiting for the dispatcher to call him there to let him know when his load was ready to haul back to Minnesota. The employee did not leave the hotel room until his return trip to Minnesota. He testified that he had felt well when he left Owatonna, during the trip to Chicago, and while staying at the Bridgeview.
On May 1, 2004, the employee began his return trip to Minnesota at about 4:30 p.m. Between mile marker 36 and mile marker 61, he began to experience a high fever, which he treated with Tylenol and Ibuprofen. He continued to feel poorly during the entire drive but was able to complete the trip, dropping off the trailer at about 12:30 a.m. on May 2, 2004. When he showered after arriving home, he noticed that his left leg was swollen and red. The employee=s wife then drove him to the hospital, at about 3 a.m., where he was found to have a fever of over 104 degrees. He was admitted to the hospital and diagnosed by infectious disease specialist Dr. Jason Sanchez as having cellulitis with toxic shock syndrome. After being diagnosed, the employee was moved to the intensive care unit, where he received antibiotics.
The employee was off work from May 2, 2004, through May 23, 2004. The parties agree that all medical treatment and the employee=s time off work were related to the infection.
The employee filed a claim petition on November 5, 2004, seeking temporary total disability benefits and medical expenses. The matter proceeded to hearing on October 26, 2005. At hearing, the employee introduced a handwritten report from Dr. Sanchez, stating that the employee=s illness Alikely began in the 24 hours prior to admission@ and that A[t]he portal of entry for his May infection most likely related to cracks between the toes from. . .(athlete=s foot), although this is speculative.@
In findings and order filed on November 15, 2005, a compensation judge found that the employee had contracted the infection in Chicago, while a traveling employee, Amost likely in the hotel room where he showered and rested during the day of May 1, 2004, before returning to Minnesota.@ The judge awarded the claimed benefits, and the employer appeals.
STANDARD OF REVIEW
On appeal, the Workers' Compensation Court of Appeals must determine whether "the 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 (2004). Substantial evidence supports the findings if, in the context of the entire record, "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 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, findings of fact should not be disturbed, even though the reviewing 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.@ Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).
The employer admits that the employee was in the course of his employment at the time he contracted cellulitis. The employer disputes, however, that the condition arose out of the employment, contending that the medical opinion of Dr. Sanchez is speculative. At oral argument, the employer clarified that its contention is that Dr. Sanchez=s opinion is flawed because he did not address the mechanism of the injury or relate the illness to poor sanitation in the motel. We are not persuaded.
First, the employer argues that Dr. Sanchez did not determine whether the cellulitis was caused by a staph or a strep infection and was only speculating that the infection entered the body through cracks between the employee=s toes. However, while there was no definitive laboratory analysis determining what kind of infection led to the employee=s cellulitis, Dr. Sanchez=s office notes repeatedly state that it was Amost likely . . . a streptococcal infection.@ We also note that there is no evidence to indicate that the kind of infection would be determinative of the outcome of this case. As for the employer=s argument that the doctor=s use of the words Alikely@ and Amost likely@ render his opinion impermissably speculative, we disagree. In Pommeranz v. State, Dep=t of Public Welfare, 261 N.W.2d 90, 30 W.C.D. 174 (Minn. 1977), the Minnesota Supreme Court stated, A[i]t is well established that a medical opinion does not have to express absolute certainty, its truth need not be capable of demonstration, and it is sufficient if it is probably true.@ Id. at 91, 30 W.C.D. at 177.
Furthermore, Dr. Sanchez=s statement, indicating that he was speculating that the infection entered through cracks between the employee=s toes, is not fatal to the doctor=s opinion. It is undisputed that the employee was experiencing a flare up of athlete=s foot at the time he contracted the infection. In addition, Dr. Sanchez=s office notes of July 2, 2004, indicate that good foot care would be important to the employee in the future because A[o]ften recurrent streptococcal infections are initiated by small breaks in the skin either as a result of dry cracking or of fungal disease between the toes.@ And, in his office note of September 27, 2004, Dr. Sanchez again recommended Aoptimal foot care to prevent cracks in and between the toes, which often serve as a portal of entry for these infections.@
We also reject the employer=s contention that Dr. Sanchez=s opinion is fatally flawed because he never directly related the onset of the employee=s cellulitis to the dirty motel room. The doctor=s statement is not the model of clarity; however, the employee testified that he solicited the report from Dr. Sanchez himself and had had a discussion with the doctor about his symptoms, when those symptoms occurred, and what his activities had been.
Noteworthy in this case is the employer=s failure to address case law covering traveling employees.
The >arising out of= and >in the course of= requirements have been liberally applied in traveling employee cases. The general rule is that an employee whose work entails travel away from the employer=s premises is, in most circumstances, under continuous workers= compensation coverage from the time he leaves home until he returns.
Voight v. Rettinger Transportation, Inc., 306 N.W. 2d 133, 136, 33 W.C.D. 625, 630 (Minn. 1981). So long as an employee is engaged in reasonable activities when he is not otherwise actively engaged in his regular employment activities, he is protected if he is considered to be a Atraveling employee.@ Epp v. Midwestern Machinery, 296 Minn. 231, 108 N.W.2d 87, 26 W.C.D. 703 (1973).
The instant case involves a traveling employee, who contracted a staph or strep infection while traveling to or from Chicago, or while staying in the hotel designated by his employer. The compensation judge found that the employee Amost likely@ contracted the infection in the hotel room where he showered and rested on May 1, 2004. In its brief, the employer suggested that, given the lack of further explanation from the treating doctor, it is just as likely that the employee contracted the infection at some time prior to the trip or from his clothing or some other personal item. At oral argument, however, the employer admitted that the employee was in the course of his employment when he contracted the infection. In addition, the record reasonably establishes that the motel room was dirty, that the employee had athlete=s foot while on the work trip, that the kind of infection he developed often enters the body through cracks between the toes, and that the employee changes his socks every day. This evidence, together with Dr. Sanchez=s opinion that the infection was contracted in the 24-hour period preceding the employee=s hospitalization, all support the judge=s decision that the employee=s injury arose out of and in the course of his employment. We therefore affirm the judge=s decision in it=s entirety.
 The employee did not wear shower slippers.
 In Voight v. Bigelow & Sons Enterprises, Inc., 43 W.C.D. 430 (W.C.C.A. 1990) and Vu v. Waconia Ford Mercury, 62 W.C.D. 6 (W.C.C.A. 2001), this court held that it is not the intent of the workers= compensation laws to afford unqualified portal to portal protection to all traveling employees in any and all circumstances. However, those cases are distinguishable. In Voight, the employee had ceased working for the day, had consumed several alcoholic beverages in a bar, and was arguably driving home at the time of his injury; in Vu, it was determined that the employee was not a Atraveling employee.@
 The employer did not argue that the employee had contracted a noncompensable ordinary disease of life.
 We note this was not a choice between expert opinions, as the employer did not provide any medical report or records to contradict Dr. Sanchez.