LETICIA LUNA, Employee/Appellant, v. PARCO, LTD./WENDY’S and CONTINENTAL W. GROUP, Employer-Insurer, and BLUE CROSS/BLUE SHIELD OF MINN., Intervenor.
WORKERS’ COMPENSATION COURT OF APPEALS
JULY 23, 2008
ARISING OUT OF & IN THE COURSE OF - SUBSTANTIAL EVIDENCE. Given conflicting testimony as to the employee’s condition and activities on the evening of the alleged injury, her failure to immediately report the alleged injury despite talking to her supervisor, and the inconsistent histories of injury contained in her treatment records, substantial evidence supports the compensation judge’s conclusion that the employee did not sustain a work-related injury as claimed.
Determined by: Wilson, J., Pederson, J., and Stofferahn, J.
Compensation Judge: Bradley J. Behr
Attorneys: Raymond R. Peterson, McCoy, Peterson, Jorstad, Minneapolis, MN, for the Appellant. Ryan J. Courtney, Fitch, Johnson, Larson & Held, Minneapolis, MN, for the Respondents.
DEBRA A. WILSON, Judge
The employee appeals from the judge’s finding that she did not sustain a work injury arising out of and in the course of her employment. We affirm.
The employee was employed by Parco, Ltd./Wendy’s [the employer] as a fry cook. She alleges that, on December 7, 2006, while in the freezer at work to take down boxes of fries for the next shift, her back “cracked” and she experienced immediate back pain and pain down her right leg when she pulled the top box down from overhead. The employee did not notify her employer but left work at the end of her shift and went home. She testified that she was unable to make dinner, that she rested at home, and that her husband helped to take care of her that evening.
On December 8, 2006, the employee called the employer and talked to her supervisor, Jennifer Hopp, telling her that she was unable to work due to back pain but not reporting that her symptoms were a result of a work-related injury.
The employee’s husband took her to St. Mary’s Hospital on December 9, 2006. The emergency department record for that date indicates that the employee reported having experienced back pain for three days with “no antecedent trauma. Does lift heavy boxes @ work. Reports legs were numb yesterday, today tingling. This happened years ago in CA.”
Dr. Larry Vukov saw the employee in consultation that day. He recorded that the employee had been experiencing back and right leg pain for the past three days, writing,
She does lift boxes of french fries at Wendy’s, and it sounds as though starting on Wednesday, she began to develop pain which was to the right side of her back with radiation into the right buttock in an L4 distribution, radiation to the right great toe. She has been having her husband carry her around the house, as she has had significant pain. There was no particular injury involved, and although she does lift boxes of french fries at work, there is no one particular time at work when she noticed a radicular-type sensation in her back.
A hospital admission note was completed by Dr. Brian Burnette later on December 9, 2006. He reported that the employee had stated that “she works at a Wendy’s restaurant and was lifting boxes of french fries when she developed a stiffness in the lower back three days ago. This has progressed during the past three days to the point where she is nearly bedridden.”
Dr. Gregory Hanson completed a second admission note on that date, stating that he had been present for the visit, history, exam, and clinical decision-making of Dr. Burnette. He stated,
[t]his is a 46 year old female who works at Wendy’s. She was lifting boxes about three days ago and noticed some low back pain and stiffness while still at work. Later that evening at home, she stood out of her chair. She developed acute exacerbation of the pain with radiation down her right lower extremity.
On December 11, 2006, Dr. Jeffrey Strommen examined the employee and reported that the employee had developed acute low back pain on Friday. “She states she had been working at Wendy’s earlier that day and went home and simply walking from her kitchen to her bedroom, she developed severe sudden low back pain. She had some radiation of the pain into the right lower extremity.” Later that same date, Dr. Christine Kenyon recorded an identical history.
The employee called general manager Paul Nogosek while hospitalized, but she did not tell him that her back pain was work-related. On December 13, 2006, the employee was referred to social services at the hospital for “financial planning.” According to the report of the social worker, “patient indicates that she injured her back when she was lifting french fry boxes out of the freezer at work.” The employee was discharged from the hospital on December 14, 2006. She never returned to work with the employer.
The employee filed a claim petition that came on for hearing on December 26, 2007. In findings and order filed on February 5, 2008, the compensation judge found that the employee failed to prove that she sustained a work-related injury on December 7, 2006. The employee 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 (2008). 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 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 employee contends that the compensation judge’s findings are not supported by substantial evidence. We are not persuaded.
The employee claimed that she sustained a specific injury to her low back on December 7, 2006. In a recorded statement taken on January 8, 2007, she stated that she had been pushing a box of fries stacked above her head to get it down when “I catch it, and then I hear the bone crack.” She described her pain level at a 7 on a scale of 1-10 and indicated that the pain was accompanied by a cramping/pinching feeling in her right leg. Subsequently, at hearing, the employee testified that she had been pulling a box of fries down on December 7, 2006, when “my back cracked.” On direct exam, she denied having any pain other than back pain at that time, but, on cross-examination, she admitted that she did not remember whether she had pain in her right leg on the date of the alleged injury.
In his memorandum, the compensation judge pointed to the histories of injury given to at least three different providers at St. Mary’s Hospital on December 9, 2006, as inconsistent with the employee’s description of the claimed injury. As noted earlier in this decision, the employee told Dr. Vukov that she lifted boxes at work, but she denied any accident or trauma or “one particular time at work when she noticed a radicular-type sensation in her back.” The employee told Dr. Hanson that she had noticed a little stiffness while lifting boxes at work but had developed acute back pain and leg pain when she stood up from a chair at home. And, the employee told Dr. Strommen that she had developed sudden severe low back pain at home, while walking from her kitchen to her bedroom.
In her brief, the employee relies on another portion of Dr. Vukov’s records, where the doctor recorded, “she does lift boxes of french fries at Wendy’s, and it sounds as though, starting on Wednesday she began to develop pain which was to the right side of her back with radiation into the right buttock.” The employee also cites to the records of Drs. Hanson and Burnette as establishing that she experienced low back pain and stiffness after lifting boxes at work. We note initially that the claimed date of injury was December 7, 2006, which was a Thursday, not a Wednesday. Secondly, while Dr. Burnette’s records reflect that the employee had been lifting boxes at work and had noticed some low back pain and stiffness while still at work, Dr. Burnette went on to state that the acute pain with radiation had occurred while the employee was getting out of a chair at home. And, finally, while Dr. Hanson noted that the employee had experienced some low back pain and stiffness after lifting boxes at work, that is not how the employee described the circumstances of her injury in her recorded statement, her deposition, or her testimony at hearing, and the employee has never claimed that lifting heavy boxes at work was a substantial contributing cause of her current condition. Even if the records relied upon by the employee were interpreted as supporting the employee’s claim, the issue before this court is not whether the evidence supports an alternative finding but whether there is substantial evidence to support the finding that the compensation judge made. Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984). It was reasonable for the compensation judge to interpret the medical records as he did.
At oral argument, for the first time, the employee’s attorney suggested that a language barrier prevented the employee from understanding what the doctors were asking during her hospitalization in December of 2006. However, this argument was not raised at trial, and the employee did not request an interpreter for the hearing. If language was a barrier to the employee’s understanding, the judge should have been notified as such, and he was not.
The compensation judge also relied on the testimony of Ms. Hopp in denying the employee’s claim. While the employee testified that she went home in pain on December 7, 2006, could not fix dinner for her family, and “was just lying down in bed and in my chair, I couldn’t move too much,” Ms. Hopp testified that the employee brought food back to the work place that night and that “she was just fine. I didn’t see anything wrong.” While the employee attempts to discredit Ms. Hopp’s testimony because of her inability to recall specific dates, such as the specific date of the employee’s last day at the employer, it was reasonable of the judge to find her testimony credible given Ms. Hopp’s ability to recall events in relationship to the employee’s last day at work. We also note that, at hearing, the employee was never asked to refute Ms. Hopp’s testimony. Contrary to the employee’s argument on appeal, the judge’s failure to make a specific finding on credibility does not mean that the employee’s credibility was not a factor in the judge’s decision. It is clear from the findings and order as a whole that the judge accepted the testimony of Ms. Hopp over that of the employee and that this was a factor in his denial of the employee’s claim. Assessment of a witness’s credibility is a unique function of the trier of fact. Even v. Kraft, Inc., 425 N.W.2d 831, 42 W.C.D. 220 (Minn. 1989) citing Brennan v. Joseph G. Brennan, M.D., 425 N.W.2d 837, 839-840, 41 W.C.D. 79, 82 (Minn. 1988). We find no grounds to substitute a different determination of credibility here.
The employee’s failure to report the injury at the time she alleges it happened, Ms. Hopps’ testimony that the employee returned to the employer later that evening and appeared fine, the employee’s failure to report the injury when she called in to work the day after the alleged injury, and her failure to give a description of the alleged injury, as she now describes it, to any of the doctors during her hospitalization beginning on December 9, 2006, all provide substantial evidence to support the judge’s denial of the employee’s claims. We therefore affirm the findings and order in their entirety.
 The employee’s deposition was apparently taken in May of 2007. Specific pages of that deposition were referenced on cross-examination of the employee at hearing, and the employee admitted testifying that she had right leg pain immediately after she caught the box.
 The employee also attached a medical record to her reply brief, which she asked the court to consider. This court will generally not consider evidence that was not submitted to the compensation judge at trial. Gollop v. Shale H. Gollop, D.D.S., 389 N.W.2d 202, 38, W.C.D. 757 (Minn. 1986).
 At oral argument before this court, the employee’s attorney stated that the employee did tell the doctors about pulling down a box at work. There is, however, no testimony from the employee to this effect in the record.
 The employee also argues that the judge erred in basing his decision on the supposed existence of a preexisting condition. However, we think that the judge’s reference to prior back problems goes more to his view of the employee’s credibility than to the question of medical causation per se.