JOSHUA J. ISRAEL, Employee/Appellant, v. SCHNEIDER NAT’L CARRIERS and LIBERTY MUT. INS. COS., Employer-Insurer, and ST. FRANCIS HOSP. and MINNESOTA DEP’T OF EMPLOYMENT & ECON. SEC., Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
MAY 29, 2008
PRACTICE & PROCEDURE. The compensation judge properly denied the employee’s Petition for Summary Decision and properly issued an order extending the time in which to file an IME. There is no evidence of misconduct, fraud, bias or procedural error requiring reversal on the facts in this case.
PRACTICE & PROCEDURE. The employer and insurer do not dispute the employee gave timely notice of his claimed work injury. The employer and insurer properly provided written notice to the employee of their denial of liability, and were not obligated to commence payment of compensation upon notice of injury where primary liability was denied.
CAUSATION - SUBSTANTIAL EVIDENCE; EVIDENCE - CREDIBILITY. Substantial evidence, including the testimony of witnesses and the records of the employee’s treating physicians, supports the compensation judge’s determination that the employee failed to prove he sustained a compensable injury arising out of and in the course of his employment.
Determined by: Johnson, C.J., Wilson, J. and Stofferahn, J.
Compensation Judge: Patricia J. Milun
Attorneys: Joshua J. Israel, pro se Employee. Janet Monson, Aafedt, Forde, Gray, Monson & Hager, Minneapolis, MN, for the Respondents. Kris Wittwer, Roseville, MN, for St. Francis Hospital, Intervenor.
THOMAS L. JOHNSON, Judge
The pro se employee appeals from the compensation judge’s determination that the employee failed to prove he sustained a compensable injury to his back arising out of and in the course of his employment. We affirm.
Joshua J. Israel, the employee, applied for work as a truck driver with Schneider National Carriers, the employer, in November 2004. He completed three weeks of required driver training in December 2004 at the Schneider Training Academy in Green Bay, Wisconsin. On Monday, January 3, 2005, the employee began two weeks of over-the-road instruction with training engineer John Steigerwald based in Minneapolis-St. Paul. The employee drove or rode in a semi tractor-trailer with Mr. Steigerwald on eight days, through Tuesday, January 11. During this time, the working relationship between the employee and the training engineer deteriorated.
On January 12, 2005, the employee and Mr. Steigerwald were returning from Eau Claire, Wisconsin, to Minnesota on Interstate 94. After crossing the border, they pulled into the St. Croix weigh station. An inspection revealed defective brake lights and the employee, who was driving, was given a out-of-service citation requiring repair of the lights before proceeding. The employee believed Mr. Steigerwald intentionally replaced a good fuse with a burned-out fuse while he was out of the truck, although he had no proof. Mr. Steigerwald denied he had done so. The employee was upset about receiving the citation and refused to drive the truck any further.
While waiting for a mechanic to arrive to repair the lights, Mr. Steigerwald contacted the employer’s Green Bay operations center by phone and asked to be replaced as the employee’s training engineer. The employer agreed, but required the employee and Mr. Steigerwald to finish the day together. Mr. Steigerwald took over the driving and the employee remained in the truck as a passenger.
Mr. Steigerwald drove the empty truck, by way of interstate highway, to St. Cloud, Minnesota, where they picked up a loaded trailer. On the return trip to St. Paul, Minnesota, they again traveled by freeway to Snelling Avenue going south. Mr. Steigerwald testified it was rush hour, around 5 o’clock, and traffic on Snelling was slow. From Snelling, they drove to the St. Paul rail yard off Pierce Butler Route to drop off the loaded trailer. The employee remained in the truck while Mr. Steigerwald disconnected the trailer. After leaving the rail yard they proceeded through St. Paul on local streets and Interstate 35E to Eagan where the truck was normally parked.
The employee testified that at the St. Paul rail yard, while driving as a “bobtail unit” - - a tractor cab without a trailer - - Mr. Steigerwald began to drive fast and recklessly. The employee and Mr. Steigerwald agreed there were potholes and bumps in the driving surface at the rail yard, and agreed there was an air ride shock-absorbent seat on the driver’s side and a stationary seat on the passenger side. The employee described the events leading to his claimed injury, stating:
The tractor, as a tractor only, has a very stiff and rigid suspension system. . . . So, when he’s not pulling a trailer, the ride is very rough in a semi bobtail unit. Now, in the St. Paul rail yards, there’s potholes everywhere. And when he drove fast on the rail yard, that’s when he began to throw me around inside the truck. After he left the rail yards as a bobtail unit . . . he drove around on the streets of St. Paul. During that time, there were potholes in the street also of St. Paul. And when he ran over those potholes and bumps, he was throwing me around inside the truck. I mean I was airborne. . . . I mean he threw me around in the truck very extremely. . . . It was a traumatic situation for me, because I knew he was doing this because he had given me previous instructions not to drive that way.
(T. at 57-59.) The employee testified Mr. Steigerwald deliberately tried to hurt or scare him. Mr. Steigerwald denied he was speeding or drove recklessly, and testified he had no reason to drive in a dangerous fashion and was not trying to injure the employee.
Two days after this incident, the employee drove to the Green Bay operations center where he took and passed the skills qualification test. The employee was assigned a semi tractor by the employer and began driving his own loads. The employee testified on January 20, 2005, after he passed the test, he reported the incident to his service team leader, Erick Schack. “I told him I had back pain.” (T. at 61.) Erick Schack denied the employee had reported an injury to him and had no recollection of the employee telling him anything about being injured in John Steigerwald’s semi tractor.
On March 7, 2005, the employee faxed a written complaint to the employer’s Human Resources department stating, in part, that he had previously raised safety concerns with the regional loss prevention manager, on January 14, 2005, due to the training engineer’s violation of policies and procedures, and had reported to Erick Schack that the incident gave him low back pain. The employee continued to work as an over-the-road driver for the employer. In May 2005, the employee refused an assignment that would require him to hand-load a trailer. The employer directed the employee to file a first report of injury and obtain a physical examination. The employee had not sought medical treatment for his back following the claimed January 12, 2005, incident.
The employee was seen by Dr. Daniel Florey, a family practice doctor, on May 25, 2005. Dr. Florey testified the employee complained of back pain, and told Dr. Florey he made the appointment because he declined a job that would require heavy lifting. The employee gave a history of a back injury that January with ongoing back pain since that time. The doctor testified the employee told him his back began hurting after riding in a truck with a very hard seat after a day when the truck ride had been particularly rough. On examination, Dr. Florey found limited flexion on the left side and somewhat limited backward extension that was possibly within normal limits for the employee. The employee had full forward flexion and a normal neurological examination. The doctor diagnosed low back pain and referred the employee to Dr. Charlotte Roehr, a physical medicine and rehabilitation specialist. Dr. Florey completed a report of work ability, indicating the injury was work-related and providing temporary work restrictions through June 25, including no lifting, carrying or pushing/pulling over 20 pounds occasionally.
By letter dated May 31, 2005, the insurer, Liberty Mutual Insurance Companies, denied liability for workers’ compensation benefits on the basis the employee failed to give timely notice. The employee then obtained counsel and filed a claim petition on June 10, 2005, alleging an injury to the low back on January 12, 2005, and seeking temporary total benefits from and after May 25, 2005, permanent partial disability, payment of medical bills and rehabilitation assistance. The employer and insurer denied the employee sustained a work-related injury, denied an injury to the low back while working for the employer, denied the employee provided proper notice, and denied the employee was temporarily and totally disabled.
The employee was seen by Dr. Roehr on June 24, 2005, and in follow-up on July 8. The history taken by the doctor indicated the employee was training for a new job as a semi driver. During the training, he was required to sit on a passenger bench seat with no air suspension for several weeks. The first week he stated his back just felt unusual. During the second week, he had a particularly rough ride with lots of potholes. The employee stated he experienced significant back pain and a feeling his back was dislodged. He was able to drive home, but vomited and had some hot flashes and cold chills for greater than 24 hours. Dr. Roehr’s clinic note states the employee described nonradiating, aching and burning back pain in a band just above the belt line, pointing to the L4-5 level midline in the spine. The doctor noted no sign of radiculopathy or mylopathy and diagnosed myofascial pain and chronic muscle strain. Noting the employee’s disability was primarily his difficulty returning to work with restrictions, Dr. Roehr referred the employee to a work-hardening program. On July 22, 2005, Dr. Roehr noted legal proceedings were pending and working-hardening was not approved. She had nothing further to offer at that point and the employee was to return as needed.
The employee’s attorney subsequently withdrew and the employee proceeded pro se. The case was heard by a compensation judge at the Office of Administrative Hearings on August 7, 2007. At the employee’s request, the record remained open until September 7, 2007, to allow submission of written interrogatories from Dr. Roehr and the employee’s post-injury wage records. In a Findings and Order, served and filed on November 6, 2007, the compensation judge found the employee failed to prove he sustained a compensable injury arising out of and in the course of his employment, and failed to establish, by a preponderance of the evidence, that his back pain was causally related to his work activities. The employee appeals.
1. Motion to Strike Respondent’s Statement of Facts
The appellant has moved to strike the respondent’s statement of facts on the basis the statement includes scandalous information about the appellant not relevant to the issues on appeal and intended to prejudice the court against the appellant. The Minnesota Rules of Civil Appellate Procedure, cited by the employee, do not govern procedure in this court, and we decline to strike the respondent’s statement of facts. We do not, however, view the employee’s prior employment and litigation history necessary to a determination of this appeal, and have not considered the history objected to by the appellant in reaching our decision.
2. Petition for Summary Decision
The employee objects to the compensation judge’s denial of his petition for summary decision under Minn. Stat. § 176.305. With one exception, the Minnesota Workers’ Compensation Act does not provide for “summary judgement” without an evidentiary hearing. Minn. Stat. § 176.322 permits determination of a case without a hearing only if the parties agree to a stipulated set of facts and only legal issues remain. Zuehlke by Zuehlke v. Penrose Oil Co., slip op. (W.C.C.A. Jan. 24, 2001). The parties did not agree to a stipulated set of facts, and the compensation judge properly denied the petition on the basis that unresolved factual disputes remained. Compare, e.g., Clay v. American Residential Mortgage Corp., 56 W.C.D. 37 (W.C.C.A. 1996); Cannata v. Borchert-Ingersoll, Inc., slip op. (W.C.C.A. Mar. 8, 2004); Knapp v. Bud Meyer Truck Lines, slip op. (Apr. 4, 1995).
3. Notice of Injury; Commencement of Benefits
The employee argues the legislature enacted a “pre-deprivation process” requiring the employer, in workers’ compensation cases, to first commence payment of compensation, within 14 days after notice of injury, and then initiate a petition to discontinue benefits, after investigation and after medical evaluation is complete, citing Minn. Stat. §§ 176. 021, 176.141 and 176.221. The employee contends the employer and insurer fraudulently failed to investigate the claim, failed to timely pay compensation, and failed to pay for medical care so medical information was incomplete, including maximum medical improvement and return to work planning.
Under Minn. Stat. § 176.141, no compensation is due until notice of the injury is given by the employee or actual knowledge is obtained by the employer. If notice is not given or obtained within 180 days of the claimed injury, the employee’s claim is barred for lack of timely notice. The compensation judge found the employee provided written notice to the employer in March 2005, within 180 days of the claimed injury, and the employer and insurer admitted notice at the hearing. As there is no dispute that notice was timely given, there is no prejudice to the employee. Nor is there any evidence in the record of fraud on the part of the employer and insurer or the court below in this respect.
Minn. Stat. § 176.021 provides “[e]very employer . . . is liable to pay compensation in every case of personal injury . . . of an employee arising out of and in the course of employment . . . The burden of proof of these facts is upon the employee.” Under Minn. Stat. § 176.221, “[l]iability for compensation under this chapter may be denied by the employer or insurer by giving the employee written notice of the denial of liability.” Thus, in Minnesota, an employer and insurer may, upon notice of a claimed injury, deny liability. If primary liability is denied, it is the employee’s responsibility to make a claim for benefits, and the employee has the burden of proving a compensable injury occurred. An employer and insurer are not required to commence payment of benefits when there is a dispute as to whether the employee sustained an injury “arising out of and in the course of” employment.
The employer and insurer in this case provided written notice to the employee in May 2005 denying liability. The employee then obtained counsel, and a claim petition was filed on June 10, 2005. In its answer, the employer and insurer denied primary liability - - that is, denied the employee’s back pain arose out of or resulted from his work activities or employment with Schneider National. Having denied liability for the claimed injury, the employer and insurer were not obligated to commence payment of wage loss benefits or to pay for medical treatment or rehabilitation assistance, including maximum medical improvement or return to work planning.
4. Procedural and Evidentiary Issues
The employee contends the compensation judge’s decision was procured by misconduct, fraud, and procedural errors and is clearly erroneous.
a. Independent medical examination. The employee complains the respondents cancelled an independent medical examination (IME) causing prejudice to the employee by an indefinite delay of the examination. Upon the filing of a claim petition, an employer and insurer may schedule a medical examination “if an examination by the employer’s physician or health care provider is necessary to evaluate benefits claimed.” Minn. Stat. § 176.155, subd. 1. In this case, an IME was scheduled for September 29, 2005. Shortly before the scheduled examination, the employee’s attorney withdrew. The IME was cancelled pending involvement of new counsel, and the employer and insurer moved for an extension of time, as permitted by Minn. Stat. § 176.155, subd. 1. The motion was supported by the sworn affidavit of counsel for the employer and insurer. The compensation judge, on these facts, properly issued an order extending the time in which to file an IME report. See, e.g., Bey v. Oxford Properties, Inc., 481 N.W.2d 40, 46 W.C.D. 198 (Minn. 1992); Newberg v. Walgreens, No. WC05-195 (W.C.C.A. Oct. 5, 2005). There is no statutory mandate requiring an IME, and the employer and insurer’s subsequent election to forego an IME was neither prejudicial nor improper.
b. Examination of witnesses. The employee argues the compensation judge and the respondents prevented effective cross-examination of witnesses by evading the production of records requested by the employee. Since the respondents withheld and concealed evidence, the employee asserts, he could not prove his case by a preponderance of the evidence.
In his pre-trial statement, the employee requested production of records including Department of Transportation accident and safety violation records for John Steigerwald. Mr. Steigerwald was a witness at the hearing and the employee had an opportunity to cross-examine him under oath. The compensation judge permitted the employee to ask Mr. Steigerwald about accidents or citations on his driving record over the employer and insurer’s objection. On these facts, we see no error or prejudice to the employee that would require reversal of the judge’s decision.
The employee also subpoenaed Dr. Foley to appear at the hearing and to bring the employee’s examination file. Although the doctor did not appear in person, the employee agreed to take Dr. Florey’s evidence by phone, and the compensation judge waited until 5:00 p.m. to allow examination of the doctor via speaker phone. Dr. Florey saw the employee only once, and the Report of Work Ability completed by Dr. Florey was admitted into evidence. The doctor testified under oath, describing the history provided to him by the employee, his examination, his diagnosis, and his recommendations. The employee had an opportunity to question Dr. Florey about his causation opinion and the actions taken, or not taken, by him. There is nothing in the record requiring a reversal or remand on these facts.
c. Fraud and medical malpractice. The employee first argues he was harmed by Dr. Roehr’s refusal to request a determination from the commissioner, pursuant to Minn. R. 5221.6050, subp. 7.C. Under this rule, an employee or a provider may file a medical request seeking a determination from the commissioner if authorization or payment for medical treatment is denied. The rule does not require a doctor to file a medical request. Moreover, in this case, the employee already had filed a claim petition when he was seen by Dr. Roehr and before the insurer denied authorization for work-hardening.
The employee further argues the decision was procured by fraud and medical malpractice that concealed the nature and extent of his injury. He asserts Dr. Roehr stated his pain and back problems were located at L4-5 midline in the spine, but maintains his pain is located at thoracic T12 to lumbar L-2. He also contends Dr. Roehr diagnosed myofascial pain and chronic muscle strain, but he, in fact, experienced radicular pain and muscle spasms in his abdomen ten months after the diagnosis. The employee’s claim petition alleged an injury to the low back consistent with Dr. Roehr’s diagnosis. The doctor’s medical records for the employee were submitted at the hearing. We see no evidence establishing fraud on the part of the respondent with respect to the medical evidence. To the extent the employee may be alleging Dr. Roehr committed malpractice, this court has no jurisdiction to consider such a claim.
d. Judicial bias. The employee contends that judicial bias is shown by the compensation judge’s coercing him to give up his right to temporary total compensation and plead for temporary partial disability benefits. Eligibility for temporary total disability benefits ceases when an employee returns to work - - for any employer - - and has an income. If an employee is working and earning less than his wage at the time of the injury, the employee may be eligible for temporary partial disability benefits. Minn. Stat. § 176.101. It became apparent at the hearing the employee was working and had earnings during at least a portion of the time for which he claimed temporary total disability benefits. The compensation judge held the record open to permit the employee to submit his earnings records post-hearing. There is nothing to suggest bias on the part of the compensation judge under these circumstances.
5. Primary Liability - Substantial Evidence
The employee claims he sustained a work-related injury on January 12, 2005, as a result of the intentional aggressive and reckless driving of training engineer John Steigerwald. On appeal, the employee asserts the compensation judge’s finding that the employee failed to establish he sustained an injury to his back arising out of and in the course of his employment is not supported by the evidence and is clearly erroneous.
This court’s authority to review a compensation judge’s decision on appeal is established by statute as interpreted by the Minnesota Supreme Court. The role of this court, when reviewing contested questions of fact, is to determine whether there is substantial evidence in the record as a whole to support the decision of the compensation judge. Minn. Stat. § 176.421, subd. 1. This court must give due weight to the compensation judge’s opportunity to judge the credibility of witnesses, and where there is conflicting evidence or where more than one inference or conclusion could reasonably be drawn from the evidence, this court must uphold the findings of the compensation judge. Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984); Redgate v. Sroga's Standard Serv., 421 N.W.2d 729, 40 W.C.D. 948 (Minn. 1988).
In this case, the determinative issue - - causation - - involves questions of fact. It is the responsibility of the compensation judge to resolve factual disputes. Felton v. Anton Chevrolet, 513 N.W.2d 457, 50 W.C.D. 181 (Minn. 1994). The employee had the burden of proving, by a preponderance of the evidence, a causal relationship between his employment and his claimed injury and disability. Fischer v. Saga Corp., 463 N.W.2d 501, 43 W.C.D. 559 (1990); Dille v. Knox Lumber Co., 452 N.W.2d 679, 42 W.C.D. 819 (1990). The compensation judge, having heard the testimony of the witnesses and reviewed the documentary evidence submitted, concluded the employee failed in his proof.
The employee maintains the compensation judge’s findings are not in conformity with the medical evidence. He contends the judge improperly relied upon the preliminary examination of Dr. Florey and disregarded the uncontradicted and unopposed medical testimony of Dr. Roehr. The employee argues that because he was referred to Dr. Roehr for further evaluation, and Dr. Florey made no functional capacity assessment and no determination of maximum medical improvement, the judge improperly relied upon Dr. Florey’s incomplete examination to find the employee had not sustained an injury. The employee asserts he was denied medical treatment, maximum medical improvement and the functional capacity assessment and return to work planning required by the workers’ compensation act, and the uncontradicted testimony of Dr. Roehr establishes the employee’s medical evaluation and treatment was interfered with and remains incomplete.
As discussed previously, the employer and insurer properly denied liability for the injury claimed by the employee and had no obligation to pay for medical treatment or rehabilitation assistance in the absence of a decision or award on stipulation ordering them to pay benefits.
The compensation judge was required to make a decision based on the record before her. The evidence included the work ability report and testimony of Dr. Florey along with the medical records and responses to written interrogatories of Dr. Roehr. Both Dr. Florey’s and Dr. Roehr’s records confirm the history of the incident conveyed by the employee. In his work ability report Dr. Florey checked a box indicating the employee’s disability was work-related. At the hearing, however, Dr. Florey testified he had no way of knowing whether there was a work injury in January 2005 other than the employee’s statement to him. The doctor agreed he did not reach any conclusion as to what caused the employee’s back pain and that the etiology of the condition was undetermined after his examination of the employee. Dr. Florey additionally testified that a back injury as a result of minor trauma would generally involve repeated exposure to the trauma over a long period of time. Dr. Roehr, in her responses to the employee’s written interrogatories, stated it was “unknown” as to whether minor trauma caused by a rigid seat in a semi-tractor-bobtail unit could cause injury to the spine when driven recklessly over bumps and pot holes.
The competency of a medical witness to provide expert testimony depends upon both the degree of the witness’s medical/scientific knowledge and the extent of the witness’s practical experience with the matter. Noone disputed Dr. Florey’s or Dr. Roehr’s qualifications as physicians. Both doctors took a history from the employee and performed a physical examination. We have on many occasions stated this level of experience provides sufficient foundation for expert testimony. Drews v. Kohl’s, 55 W.C.D. 33 (W.C.C.A. 1996). The decision concerning the weight to be given to evidence submitted at the hearing, and whether to accept or reject a doctor’s opinion is for the compensation judge, not this court. See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). We see no basis, on this record, for reversal of the compensation judge’s finding that the employee failed to prove he suffered a work-related disability to his back.
Ultimately, the decision in this case rests on credibility. There was conflicting testimony from the employee and the employer and insurer’s witnesses regarding the events leading to the employee’s claimed work injury, and the medical evidence supporting the employee’s claim of a work-related disability was equivocal, essentially resting on the history provided by the employee. This court must give deference to the compensation judge with respect to the assessment of witnesses’ credibility. Tolzmann v. McCombs Knutson Assocs., 447 N.W.2d 196, 42 W.C.D. 421 (Minn. 1989). Having carefully reviewed the record, we cannot conclude that the compensation judge’s finding that the employee failed to prove he sustained a compensable injury arising out of and in the course of his employment is unsupported by substantial evidence or clearly erroneous. We must, therefore affirm.
6. Constitutional Claims and Other Issues
The employee additionally argues he was denied due process and equal protection guarantees in violation of the United States Constitution. This court has no authority to consider or determine constitutional issues. Weber v. Inver Grove Heights, 461 N.W.2d 918, 43 W.C.D. 471 (Minn. 1990). Nor does this court have jurisdiction to address the employee’s allegation the respondents made false statements to the Unemployment Division of Minnesota or the claim his former counsel engaged in actions prejudicial to the administration of justice. These issues must be addressed elsewhere.
 A compensation judge is not bound by common law or statutory rules of evidence. Minn. Stat. § 176.411, subd. 1. To warrant reversal, a compensation judge’s evidentiary ruling must be prejudicial as well as erroneous. See Villella v. Ford Motor Co., No. WC07-236 (W.C.C.A. Mar. 25, 2008) and cases cited therein.