PATRICK A. FITZGERALD, Employee, v. DOS TRUCKING, INC., Employer/Appellant, and MINNESOTA ASSIGNED RISK PLAN/BERKLEY RISK ADM’RS, Insurer/Appellant, and ST. PAUL RADIOLOGY and REGIONS HOSP., Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
MAY 29, 2008
CAUSATION - SUBSTANTIAL EVIDENCE. Considering the entire record, substantial evidence does not support the compensation judge’s determination that the respondent sustained a work-related personal injury on August 21, 2005, and the compensation judge’s award of benefits is reversed.
Determined by: Stofferahn, J., Wilson, J., and Johnson, C.J.
Compensation Judge: James F. Cannon
Attorneys: Duane E. Arndt, Arndt & Benton, Minneapolis, MN, for the Respondent. Lawrence C. Miller, Miller & Carlson, Minneapolis, MN, for the Employer-Appellant. Craig A. Larsen, Cousineau McGuire, Minneapolis, MN, for the Insurer-Appellant.
DAVID A. STOFFERAHN, Judge
Minnesota Assigned Risk Plan/Berkley Risk Administrators (Berkley) appeals from the compensation judge’s finding that Patrick Fitzgerald (Fitzgerald) sustained a work injury to his right leg on August 21, 2005. DOS Trucking, Inc. (DOS) appeals from the compensation judge’s conclusion that Fitzgerald was an employee of DOS and not an independent contractor on the date of his injury. We reverse the determination that Fitzgerald’s injury on August 21, 2005, was work related.
Hygenic Service Systems, Inc., (HSS) provides linen and laundry services to various hospitals and nursing homes in Minnesota. In January 2005, DOS entered into an agreement to deliver and pick up laundry for HSS. Shortly after that agreement took effect, Fitzgerald was hired by DOS to drive a route for HSS, picking up and delivering laundry in a truck he leased from DOS. In the agreement between Fitzgerald and DOS, Fitzgerald was identified as an independent contractor.
Fitzgerald testified that he had sustained a work injury to his right leg on August 21, 2005. At that time he was at the HSS facility in St. Paul, loading his truck for his Monday route. He had backed his truck into the loading dock, but because of a bumper on the loading dock, there was a gap between the truck and the dock. Fitzgerald used a dock plate to bridge the gap so he could wheel laundry carts into his truck. He testified that while he was pushing a cart into his truck, a wheel jammed, causing him to lose his balance. His right leg fell into the gap between the truck and the loading dock. Fitzgerald said that his right leg must have come in contact with something in the gap because when he pulled it out it was painful and bleeding from a puncture wound. Fitzgerald testified that he looked to see what he had struck, but that he had no idea what he had hit with his leg.
That same evening Fitzgerald went to HealthPartners Urgent Care where his wound was cleaned and dressed. He was referred to Regions Hospital the same day for suturing of his wound. Subsequently, Fitzgerald developed an infection in his right leg and he was admitted to Regions Hospital on September 6, 2005. He had surgery the next day, incision and drainage of the right leg infection. Another incision and drainage procedure was done on September 13, 2005. Fitzgerald was discharged on September 23, 2005. He was readmitted a few days later for skin grafting to his lower leg on September 29, 2005.
Fitzgerald filed a claim petition on November 1, 2005, alleging that he was an employee of DOS on August 21, 2005, and claiming he was entitled to workers’ compensation benefits as the result of a work injury on that date. DOS and Berkley answered, contending that Fitzgerald was an independent contractor, and that the August 21, 2005, injury was not work related. The claim petition was heard by Compensation Judge James Cannon on March 20 and May 2, 2007.
In his findings and order of August 7, 2007, the compensation judge concluded that Fitzgerald was an employee on August 21, 2005, because he did not meet the criteria for independent contractor set out in Minn. R. 5224.0290, subp. 2. The compensation judge also determined that the August 21, 2005, injury was work-related and awarded workers’ compensation benefits. DOS appeals the determination that Fitzgerald was an employee. Berkley appeals the finding that the right leg injury was work-related.
Claimed Work Injury of August 21, 2005
Fitzgerald testified at the hearing that while he was loading his truck at the HSS facility in St. Paul, a wheel on one of the laundry carts jammed, causing him to lose his balance. His right leg fell between the truck and the loading dock where it came in contact with something that caused his injury. This history conflicts with the history found in the employee’s medical records.
His first medical care was at HealthPartners Urgent Care on August 21, 2005, where he saw Dr. Jerome Peterson. The history recorded by Dr. Peterson was that Fitzgerald “fell on the back of his pick up truck about 5:00 p.m. tonite and a piece of rebar cut R. leg.”
The employee was also seen at the Emergency Department at Regions Hospital on August 21, 2005. Dr. Melissa Tschol took the following history, “he states he was doing some construction work around his house and slipped and fell, hitting his leg on a piece of rebar. He states that it was coated with some black plastic paint, and it was completely intact and he was certain there was nothing left in his leg. He stated it punctured through the right lower leg laterally.”
Following his treatment on the day of injury, Fitzgerald returned to HealthPartners Urgent Care on September 4, 2005, because of drainage from his wound. Dr. Gary Freeman took a history that “Patrick Fitzgerald sustained a laceration on his lateral right lower leg on August 21. He states that he ran into some rebar which punctured the skin. He then fell and the rebar tore the skin.”
Fitzgerald was admitted to Regions Hospital on September 6, 2005, through the Emergency Department. He saw a Physician’s Assistant, Karen Farrington, who recorded “Pt had injury Aug 21 with rebar - was seen at Regions.”
In an admission summary of September 6, 2005, Dr. Eric Trehus stated “the patient, approximately two weeks ago, was doing construction work on the house, tripped and fell on some rebar which caused a deep laceration to the lateral distal calf area.”
On September 7, Dr. Shawn Groth performed a surgery consult at Regions. The history recorded was that “on 8-21-05, while descending from the back of his truck he fell against a piece of rebar, resulting in a deep 4 cm laceration to his distal right lateral lower extremity.”
Finally, in the discharge summary at Regions on September 23, 2005, Dr. Nghia La noted “according to patient, about two weeks ago he was doing some construction around the house, he tripped and fell which caused a deep laceration to his right distal calf.”
Fitzgerald was asked about the histories at the hearing during cross-examination. His response was “where rebar came into it, I have no idea.” Fitzgerald stated that he had told the various doctors exactly what had happened according to him during the incident at HSS and he said the medical records were incorrect.
The compensation judge accepted Fitzgerald’s version as to how his injury occurred. In his memorandum, the compensation judge stated that Fitzgerald was a poor historian, but that he had credibly testified that he was injured on the loading dock. The compensation judge mentioned the probative value of contemporaneous medical records, but referred only to the initial hospital record at HealthPartners Urgent Care, and the compensation judge stated in his memorandum that Fitzgerald’s testimony was “essentially consistent” with the record. After reviewing the entire record, we are compelled to conclude that the compensation judge’s determination on this issue lacks the support of substantial evidence and must be reversed.
This court is to affirm the findings of a compensation judge “if, in the context of the record as a whole, they are supported by evidence that a reasonable mind might accept as adequate.” Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 60, 37 W.C.D. 235, 240 (Minn. 1984). The finding of the compensation judge on this issue in this case is based solely on the testimony of Fitzgerald. Considering the record as a whole, we cannot accept this evidence as adequate to support the compensation judge’s decision.
In reaching this conclusion we find a number of items in the record to be significant. First, we note that is was not just Dr. Peterson at HealthPartners Urgent Care who had a history contrary to Fitzgerald’s testimony. Six different health care providers took histories of Fitzgerald falling on rebar while doing work at his house. We find it unlikely that all would refer to a very specific piece of material - rebar - if that word had not been used by Fitzgerald during his interviews with these professionals. We are especially struck by the notes of Dr. Tschol, dictated on the date of injury, which refer to the employee’s statement and which are very detailed, even noting that the rebar was coated with black plastic paint. Although this record was dictated on the same date as the injury, it was not mentioned by the compensation judge. We note that 5 of the 6 conflicting histories were taken within one month of the injury. We also question whether the mechanism of injury described by Fitzgerald is consistent with the nature of the injury. A lateral puncture to the distal right calf would seem to be much more consistent with falling on rebar. Finally, although Fitzgerald testified that he gave the loading dock injury history to all of his doctors, there is no mention in any of the records of any element of that history. There is no mention of a loading dock or of a laundry cart or of a delivery truck.
We are not setting forth a general rule that an employee’s testimony is not to be accepted when his or her testimony is at variance with medical records. On these unusual facts, however, we are compelled to conclude that the compensation judge’s finding that Fitzgerald sustained a work injury on August 21, 2005, is manifestly contrary to the clear weight of the evidence and must be reversed.
Independent Contractor vs. Employee Status
DOS appealed the compensation judge’s determination that Fitzgerald was an employee of DOS and not an independent contractor. Our decision as to primary liability has rendered this issue moot. Accordingly, we will not consider this issue in this decision.