WOODS CROCKER, Employee, v. HMS HOST CORP. and GALLAGHER BASSETT SERVS., INC., Employer-Insurer/Appellants, and HEALTHPARTNERS, INC., SUBURBAN RADIOLOGICAL CONSULTANTS, and MINN. CULINARY BEVERAGE & MISC. EMPLOYEE/EMPLOYER TRUST, Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
JUNE 14, 2007
NOTICE OF INJURY - SUBSTANTIAL EVIDENCE; EVIDENCE - CREDIBILITY. Where the judge was clearly aware of the conflicts between the employee=s testimony and documentary evidence referenced by the employer and insurer, and where the employee=s testimony, that he did not more actively pursue a workers= compensation claim initially because he Adidn=t want to make waves,@ did not compel a conclusion that the employee was not credible in his testimony that he advised his supervisors of his injury on the date of its occurrence, the compensation judge=s conclusion that the employee gave statutorily proper notice of his work injury was not clearly erroneous and unsupported by substantial evidence.
CAUSATION - SUBSTANTIAL EVIDENCE. Where the judge acknowledged that the employee had pre-existing degenerative disc disease in his lumbar spine but concluded nevertheless that the employee had experienced a work-related physical insult to his pre-existing condition that effectively removed him from continuing in his job with the employer, and where that conclusion was supported by the employee=s testimony and medical records, the compensation judge=s conclusion that the employee=s work was a substantial contributing factor in his disability was not clearly erroneous and unsupported by substantial evidence.
TEMPORARY TOTAL DISABILITY - SUBSTANTIAL EVIDENCE; JOB SEARCH - SUBSTANTIAL EVIDENCE. Where the judge reasonably concluded that, prior to his termination, the sixty-year-old, seventeen-year employee was medically restricted by his work injury from returning to his job with the employer and there was no evidence that lighter duty work was available, where the judge reasonably concluded that, subsequent to his termination, the employee was unable to receive necessary medical treatment because his health insurance had been cancelled, and where the judge reasonably concluded that, while limited, the employee=s efforts to find work since his termination had been reasonable in light of the effects of his work injury, his limited employment history, and his lack of vocational/rehabilitation assistance, the compensation judge=s award of temporary total disability benefits was not clearly erroneous and unsupported by substantial evidence.
Determined by: Pederson, J., Johnson, C.J., and Stofferahn, J.
Compensation Judge: Paul V. Rieke
Attorneys: Thomas A. Klint and William J. Marshall, Babcock, Neilson, Manella & Klint, Anoka, MN, for the Respondent. James S. Pikala and Christine L. Tuft, Arthur, Chapman, Kettering, Smetak & Pikala, Minneapolis, MN, for the Appellants.
WILLIAM R. PEDERSON, Judge
The employer and insurer appeal from the compensation judge=s findings that the employee sustained a work-related injury to his low back on February 6, 2006, and provided proper statutory notice of the injury to his employer and from the judge=s award of temporary total disability benefits. We affirm.
Woods Crocker [the employee] began working for HMS Host Corporation [the employer] in its commissary department at the Minneapolis-St. Paul International Airport in February of 1989. His job was in shipping and receiving and involved delivering kegs of beer and cases of beer, soft drinks, and water on a flat-bed cart to different concourses throughout the airport. The employee typically used a motorized cart to move the product, but on occasion he had to manually push the cart. The employee estimated that a loaded cart weighed five or six hundred pounds.
The employee=s medical records document a history of low back pain stemming back at least nineteen years. On June 19, 1995, the employee was seen in the Family Practice Clinic at Group Health with a complaint of back pain that radiated down into his left lower extremity. The examining doctor noted that the employee Adoes a lot of lifting at work and he knows that has been aggravating [his back] for 7 years.@ The employee reported his pain at that time to be at about a level 7 in severity on a scale of 1 to 10. His findings on physical examination were essentially unremarkable, except for a report of tenderness in the left posterior superior iliac spine. The doctor diagnosed left-side back pain and possible left sciatica, and he advised the employee to limit his lifting for two weeks to less than twenty pounds.
About nine years later, on June 29, 2004, the employee was seen at a Health Partners clinic complaining of a two-week history of acute low back pain. The employee associated his back pain at that time with lifting and pushing cases of soda and beer at work. The employee described sharp pain in his back with no radiation to his extremities. The doctor=s assessment was acute low back pain, and he recommended that the employee take Tylenol as needed for pain and limit his lifting activities for a week. The doctor noted that the employee did not want his visit billed as a workers= compensation injury.
On or about February 6, 2006, while working for the employer, the employee allegedly sustained an injury to his lower back while manually pushing a cart of beer and water. The employee alleges that a motorized cart was unavailable and that he pushed the cart by hand for about two blocks on a carpeted surface. He was sixty years old at the time and was earning a weekly wage of $499.20.
The employee first sought medical attention for his claimed injury at Health Partners on February 14, 2006. At that visit, the employee complained to the doctor of right-side lower back pain Awith signs of radiation of the pain to the back of his thighs to the area of the posterior knee.@ The employee related that
[h]e thinks it might have started at work on 2/6/06 but he does not want to claim this as a work comp injury visit . . . . Apparently he has to push or pull beer kegs and lifting them as he is a food handler at work. He uses a motorized bed to move th[ese] heavy beer kegs around but on 2/6/06 he had to push them without using the motorized bed.
The doctor=s assessment included acute low back pain with signs of possible right sciatica. The employee declined to pursue physical therapy or to take any anti-inflammatories, analgesics, or muscle relaxants, but he did request an MRI scan. On that same date, Dr. Rodelio Bucu, the attending physician, evidently drafted a brief, unaddressed letter separate from his office note, reporting that the employee was unable to attend work Afrom 2/13/2006 through 2/16/2006.@ Dr. Bucu=s letter did not include any comment on the work-relatedness of the employee=s condition.
The employee=s MRI scan of the lumbar spine was performed on February 22, 2006. The radiologist=s report noted a history of right-side back and leg pain for three weeks after a lifting injury. The study showed degenerative disc disease, with an extruded disc putting pressure on the right S1 nerve root.
The employee was seen at Health Partners by Dr. Dale Schurle in follow-up on February 27, March 15, and April 4, 2006. Dr. Schurle suggested an epidural injection as a treatment option, but the employee preferred continuing conservative management Aby avoiding heavy lifting, pushing, [or] pulling.@ In letters addressed ATo Whom It May Concern@ on February 27 and March 15, 2006, Dr. Schurle reported the employee=s statement that a light duty position was not a possibility for him at work, indicating that the employee would therefore remain off work. Neither letter commented on the work-relatedness of the employee=s condition.
On April 18, 2006, the employer completed a First Report of Injury on behalf of the employee for a claimed injury on February 1, 2006. The report noted that the employee complained of discomfort in his back but that the specific cause and diagnosis were unknown. The date on which the employer was notified of the employee=s injury was reported to be April 18, 2006. About this same time, the employee requested and received a sixty-day medical leave from the employer.
The employee remained off work, and on April 25, 2006, Dr. Bucu issued orders for physical therapy and an occupational medicine consultation. Dr. Bucu extended the employee=s period of disability through May 9, 2006, again reporting that the employee had stated that no light duty position was available for him at work.
The employee returned to see Dr. Bucu in follow-up on May 9, 2006. Dr. Bucu noted that, when the employee was initially evaluated on February 14, 2006, he had not wanted to claim his visit under workers= compensation but that he now may have changed his mind and had applied for Awork comp@ regarding his back problem. The doctor continued to diagnose chronic low back pain with chronic right sciatica, lumbar disc herniation, and degeneration at L5-S1. He recommended that the employee immediately commence the program of physical therapy that had been prescribed, and he gave him a phone number to call to obtain a consultation with an occupational medicine specialist, extending the employee=s release from work until June 9, 2006. The employee did not return to Health Partners after that May 9, 2006, visit.
On July 3, 2006, the employee filed a claim petition, seeking payment of temporary total disability benefits continuing from February 14, 2006, consequent to a low back injury with the employer. The employer and insurer denied that the employee sustained an injury on or about February 6, 2006, and denied that the employer received notice of such and injury as required by law. The employer and insurer=s answer was not timely filed, and the matter was placed on the calendar for an expedited hearing pursuant to Minnesota Statutes ' 176.331.
The matter came on for a hearing before a compensation judge on November 14, 2006. Issues presented to the compensation judge for determination included the following: (1) whether the employee sustained an injury to his low back arising out of and in the course of his employment on or about February 6, 2006; (2) whether the employee gave proper notice of his alleged injury to his employer; and (3) if he did sustain and give notice of a work-related injury as alleged, whether the employee is entitled to temporary total disability benefits from February 14, 2006, through November 14, 2006. Evidence offered at hearing included the employee=s medical treatment records, the First Report of Injury, and the employee=s testimony.
The employee testified that on the date of his injury he told the employer=s assistant manager and his direct supervisor that he had hurt his back pushing a cart. He testified that he initially did not want to pursue a claim under workers= compensation because he Adidn=t want to make waves@ and he thought he would get better with rest. He testified also that he was unaware of the legal consequences of not reporting a work injury. He stated that after each of his medical visits he had telephoned the employer=s Human Resource Department [HR] to let them know what the doctor had said and that the doctor=s office would be faxing them a note about that visit. He testified also that he had advised his contact in HR that his back problem was related to his work. The employee testified that he was terminated from his employment in June 2006 because he did not have a medical statement certifying that he could return to work. He testified further that, while on medical leave, his health insurance coverage had been cancelled and he had been unable to obtain further treatment for his work injury. Finally, the employee testified that, since June 2006, his condition has gotten worse.
In a findings and order issued November 16, 2006, the compensation judge found that the employee sustained an injury to his low back arising out of and in the course of his employment on or about February 6, 2006. He found also that the employee gave proper statutory notice of that injury and had been temporarily totally disabled from February 14, 2006, through November 14, 2006. The employer and insurer appeal.
STANDARD OF REVIEW
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(2004). 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, 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.@ Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201 , 229 N.W.2d 521, 524 (1975).
The employer and insurer first contend that the judge=s determination that the employee gave proper statutory notice of a work injury is unsupported by substantial evidence. They contend that the employee=s testimony on the issue is not credible when viewed in the light of the documentary evidence. The First Report of Injury, they argue, which indicates the specific cause of the employee=s back discomfort as unknown, contradicts the employee=s testimony that he informed his employer that he injured his back pushing a cart. Further, they contend, the notification date of April 18, 2006, noted on the First Report of Injury confirms the intention voiced by the employee to his doctors - - that he did not want his medical visits handled under workers= compensation. Moreover, they argue, none of the work ability letters prepared by Health Partners and purportedly faxed to the employer on February 14, February 27, March 15, April 25, and May 9, 2006, indicating a diagnosis of degenerative disc disease, contains any information that would place the employer on notice of a work-related injury. Because, they contend, the only evidence of alleged notice of the injury is the employee=s testimony, and because the employee=s testimony is not credible and is conflict with the documentary evidence, substantial evidence does not support a determination that the employee provided adequate notice of the alleged work injury of February 6, 2006. We are not persuaded.
The employer and insurer acknowledge that a determination regarding whether statutorily sufficient notice was provided is a question of fact to be determined by the compensation judge. Roers v. Jennie-O-Foods, slip op. (W.C.C.A. June 23, 1997). The compensation judge found that A[o]n the day of injury the employee told the employer=s assistant manager and his direct supervisor that he had hurt his back pushing the beer and water.@ This finding of the compensation judge is supported by the employee=s testimony. The judge in this matter was clearly aware of the alleged conflicts between the employee=s testimony and the documentary evidence referenced by the employer and insurer. The employee testified that initially he did not actively pursue a workers= compensation claim because he Adidn=t want to make waves.@ This testimony does not, however, compel the conclusion that the employee was not credible in his testimony that he advised his supervisors of his injury on the date of its occurrence. Nor was any testimony offered to contradict the employee=s statements. Assessing the credibility of witnesses is a function normally left to the compensation judge, who is in a unique position to observe the witness=s demeanor during live testimony, and this court may reverse a compensation judge=s determination regarding witness credibility only where the record discloses that the determination was clearly erroneous. See, e.g., Even v. Kraft, Inc., 445 N.W.2d 831, 835, 42 W.C.D. 220, 225-26 (Minn. 1989). Here, although different inferences could be drawn from the evidence, we cannot conclude that the compensation judge unreasonably relied on the employee=s testimony. We therefore affirm the judge=s finding that the employee gave proper statutory notice of injury. See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.
In addition to the notice issue, the employer and insurer contend that substantial evidence does not support the judge=s determination that the employee actually sustained a work-related injury to his low back on the date alleged. They argue that the employee merely advised his medical providers that he Athought@ he had sustained a work-related injury on February 6, 2006. They note that he did not seek treatment for his alleged injury immediately but only after being on vacation. Clearly, they argue, his degenerative disc disease did not develop as a result of any event occurring on February 6, 2006. And finally, they argue, medical records in 1995 and 2004 document that the employee has an established pre-existing condition, notwithstanding his denial of the condition on cross-examination. Because, they assert, the employee=s reporting of the injury calls into question the employee=s credibility, and in light also of the nature of his condition and its arguable pre-existence, substantial evidence does not support the occurrence of a work-related injury on February 6, 2006. Again, we are not persuaded.
The employee testified that he injured his back while pushing a heavy cart of beer and water for a considerable distance on a carpeted surface. The employee sought treatment at Health Partners about a week later, and he provided the same history to his doctor. The compensation judge accepted the employee=s testimony as credible. In his memorandum, the judge acknowledged that the employee had pre-existing degenerative disc disease in his lumbar spine, but he concluded that Athe employee experienced a work-related physical insult to his pre-existing underlying low back condition which effectively removed him from continuing in his physically demanding job with the employer and required medical attention.@ It is well settled that injuries are compensable if the employment is a substantial contributing factor not only in the cause of the condition but also in the aggravation or acceleration of a pre-existing condition. Wallace v. Hanson Silo Co., 305 Minn. 395, 235 N.W.2d 363, 28 W.C.D. 79 (1975). The judge=s finding that the employee sustained a work-related injury on February 6, 2006, is supported by the employee=s testimony and by his medical records. Such evidence is substantial, and, as such, the judge=s decision is affirmed. See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.
3. Temporary Total Disability
The employer and insurer contend that the judge=s award of temporary total disability benefits from February 14, 2006, through November 14, 2006, is unsupported by substantial evidence and should be reversed. They argue that the medical evidence submitted indicates that the employee could have performed light duty work from February 14, 2006, through June 9, 2006, that after June 9, 2006, there is no evidence of any restrictions on the employee=s work activities, and that the employee presented no evidence of a reasonable and diligent job search but instead actually withdrew from the labor market. We are unconvinced.
At Finding 5, the judge found that medical records and the results of objective medical testing between February 2006 and June 2006 support the employee=s claim that he was unable to perform his physically demanding work due to his low back condition. Moreover, although the work ability statements issued by Health Partners do imply that the employee may have been capable of light duty work had such work been available, no evidence was offered contrary to the employee=s credited report that light duty work was unavailable during that period, and the judge=s conclusion regarding it is not unreasonable.
With respect to the employee=s claim for benefits between June 9, 2006, and November 14, 2006, we believe that the facts and circumstances of this case reasonably support the judge=s award of benefits here as well. At the time of his injury, the employee was sixty years old and had worked for the employer for about seventeen years. At Finding 6 the judge found that, following his termination in June 2006, the employee was unable to receive necessary medical treatment because his health insurance had been cancelled, and at Finding 7 the judge concluded that the employee=s physical condition had not improved between June 2006 and the date of hearing. These findings, supported as they are by the credited testimony of the employee, are not unreasonable. Cf. Even, 445 N.W. 2d at 835, 42 W.C.D. at 225-26. At Finding 8 the judge concluded also that, while limited, the employee=s efforts to find work since June of 2006 had been reasonable, in light of the effects of his work injury, his limited employment history, and his lack of vocational/rehabilitation assistance. See Okia v. David Herman Health Care Ctr., 38 W.C.D. 261, 263 (W.C.C.A. 1985) (an employee=s obligation to perform a job search is viewed within the context of the vocational rehabilitation provided). The determination of whether an employee=s job search is diligent is a question of fact for the compensation judge to resolve, Bauer v. Winco/Energex, 42 W.C.D. 762, 768 (W.C.C.A. 1989), and the judge=s conclusion as to this issue was not unreasonable either.
Because the judge=s findings as to the employee=s work-related restrictions and job search were not unreasonable with regard to any period of his claim, we conclude that the judge=s award of benefits in this case is adequately supported by the record and should be affirmed. See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.
 It is unclear from the record whether these alleged faxes were ever made or whether they were supposed to include the complete progress notes from the employee=s office visit or simply the brief work ability letters.