JOHN G. WANECKE, Employee/Appellant, v. MASON BROS. CO. and SFM MUT. INS. CO., Employer-Insurer, and PRIMEWEST and MINNESOTA DEP=T OF EMPLOYMENT & ECON. DEV., Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
DECEMBER 23, 2008
CAUSATION - SUBSTANTIAL EVIDENCE. Where it was supported by expert medical opinion, the credited testimony of witnesses, and other evidence of record, the compensation judge=s conclusion that the employee did not prove that his hernia was a consequence of his work activities was not clearly erroneous or unsupported by substantial evidence.
Determined by: Pederson, J., Johnson, C.J. and Rykken, J.
Compensation Judge: Carol A. Eckersen
Attorneys: John G. Wanecke, pro se Appellant. John M. Hollick, Lynn, Scharfenberg & Assocs., Bloomington, MN, for the Respondents.
WILLIAM R. PEDERSON, Judge
The employee appeals from the compensation judge=s denial of the employee=s claim based on a work-related hernia on December 7, 2004. We affirm.
John Wanecke [the employee] began working as a specialty bread maker for Mason Brothers Company [the employer] on December 6, 2004. The employer operates a wholesale grocery and bakery in Wadena, Minnesota. As a benefit to employees and their spouses, the employer has a health center on its premises. The health center includes a basketball court, a weight room, a swimming pool, a sauna, and a steam room. Every person desiring to use the health center is required to undergo a physical exam before access is allowed. The employer uses the Wadena Clinic for this purpose.
The employee=s regular work shift with the employer was from about 4:00 p.m. to midnight or after. On December 6, 2004, however, the employee worked the day shift and completed an orientation and some paperwork with the employer=s Human Resources Director, Jeff Wing. The following day, he worked the afternoon to evening shift and completed his shift shortly after midnight. On December 8, 2004, the employee requested that he be allowed to work the day shift so that he could attend his health center exam at the Wadena Clinic that morning. The employee attended his physical examination at the Wadena Clinic on that same date, December 8, 2004. Upon his examination, which took one-half hour, the examining doctor found, in part, a left inguinal hernia. No history or other discussion of that hernia is identified in the Wadena Clinic records, and the employee had no prior history of abdominal pain or treatment for groin pain, except for a January 5, 1999, entry indicating that, while examining the employee at the Alexandria Clinic, Dr. Michael Bristow had noted that the employee had Aa left inguinal impulse with cough.@
The employee continued to work for the employer into May of 2005, earning $14.00 per hour and working regular overtime. On May 11, 2005, the employee notified Mr. Wing that on December 8, 2004, he had sustained a hernia at work. The employer completed a first report of injury on May 17, 2005.
On May 13, 2005, the employee was seen again by Dr. Bristow, who reported a lump in the employee=s left lower abdomen. Dr. Bristow noted that the employee was reporting
symptoms present since shortly after starting to work for his current employer. Pt. Recalls sudden onset of symptoms while pushing loaded breads racks, he states that he had sudden onset of discomfort and subsequently developed the bulge. Patient states that he attempted to report his injury to his employer at the time it occurred, however, was told that the needed paperwork was not available for him. He states that the symptoms have been persistent since the time of the injury, over the last week he had attempted to decrease his lifting and work level due to the continued discomfort.
Dr. Bristow diagnosed a left-side inguinal hernia and assigned restrictions related to an injury sustained on December 8, 2004.
An adjuster for the employer=s workers= compensation insurance, SFM Mutual [the insurer], obtained a recorded statement from the employee on May 20, 2005. The employee recalled that he was injured on December 8, 2004, while pushing bread racks onto a truck at the end of his shift. He stated that he reported the incident that same day to Bob Branstner, the employee=s night manager and his immediate supervisor. He stated that he did not see a doctor until May 13, 2005, because his abdomen really didn=t bother him unless he Aoverdid it.@ He stated that the doctor at the Wadena Clinic did not tell him that he had a hernia and that he had no pain at the time of the exam.
The employee returned to see Dr. Bristow on May 24, 2005, reporting that, after reviewing his work hours, he had now concluded that his injury had occurred on December 7, 2004. The employee was released to partial duty with restrictions and was referred to general surgeon Dr. Gary Paulson. Dr. Paulson examined the employee on June 8, 2005, and diagnosed bilateral inguinal hernia, left greater than right. He recommended repair at the employee=s convenience but released him to work with no restrictions until after the repair. About two weeks later, Dr. Bristow also lifted the employee=s restrictions until after his planned hernia surgery.
On June 29, 2005, Jeff Wing wrote to the employee, noting that, although the employer had been advised on June 16, 2005, that the employee had been released to work without restrictions, the employee had not contacted the employer since that date. He advised the employee that the employer was unable to hold his position open any longer and that he was being terminated effective June 29, 2005. In a follow-up letter to the employee on July 7, 2005, Mr. Wing noted that he and the employee had been scheduled to meet on June 29, 2005, to discuss further employment but that the employee had telephoned that morning to state that he would not be attending the meeting. Mr. Wing stated that the employee=s failure to contact him for almost two weeks in June, along with his failure to attend their meeting, had led to his termination.
The employee had neither work restrictions nor medical treatment for his hernia condition between June 23, 2005, and December 28, 2006. When he returned to see Dr. Bristow on December 28, 2006, the doctor noted that the employee continued to struggle with inguinal discomfort, Aright greater than left and a history of bilateral inguinal hernias,@ and he reinstated restrictions on the employee=s activities. In a letter to the employee=s attorney on January 2, 2007, Dr. Bristow stated,
As inguinal hernias tend to be susceptible to formation or enlargement associated with physical activity, lifting or other strenuous tasks, it is my opinion, that his work related activities were directly related to the onset of his symptoms. Specifically, strenuous pushing of bread racks, any associated lifting and certainly the employer sponsored exercise activities would all put him at risk for exacerbation of any developing hernia that may have been present or formation of a hernia if not previously noted.
Dr. Bristow noted that the employee had again been placed on formal restrictions until his hernia was repaired.
The employee filed a claim petition for workers= compensation benefits on February 20, 2007. The employer and insurer denied that the employee injured himself at work and arranged for a medical evaluation by Dr. Howard Saylor on May 16, 2007. Dr. Saylor obtained a history, reviewed the employee=s medical records, and performed a physical examination. In a report dated May 31, 2007, Dr. Saylor diagnosed the employee=s condition as bilateral inguinal hernias. He went on to state,
Hernias can be attributed to heavy lifting and strenuous type activity. [The employee] states that the incident occurred on December 7, 2004. He did undergo a physical examination on December 8, 2004, at which time a hernia was noted. At that time, he was not complaining of any type of groin pain or other symptomatology. It would be unusual for someone to develop a sudden hernia the day before a physical examination and not have some type of symptoms the following day on examination. Therefore, it would be my medical opinion that [the employee=s] hernias were a preexisting condition. It should also be noted that when I questioned [the employee] on history, he said his discomfort abated over the course of several weeks. This would be further evidence that I would expect some type of discomfort noted on history or examination on his exam of December 8, 2004.
The employee=s claim for benefits came on for hearing before a compensation judge on January 10, 2008. The primary issue in dispute was whether the employee had sustained a hernia arising out of and in the course of his employment on December 7, 2004. Evidence presented at trial included the employee=s medical reports from Dr. Bristow and Dr. Saylor and testimony from the employee, Mr. Wing, and Mr. Branstner.
The employee testified that on December 7, 2004, he was pushing a short stack of racks into a delivery trailer at the end of his shift, when a corner of a rack caught the edge of the dock plate and stopped abruptly. The employee stated that he felt a sharp pain in his left groin at the time of the incident. He stated that he reported the injury to the night manager, Bob Branstner, who gave him a ride to his motel at the end of his shift. He testified that he asked Mr. Branstner if he had any paperwork to formalize the report and that Mr. Branstner had replied that he didn=t even have the paperwork to write up an employee who misbehaves.
Mr. Branstner testified that he had worked for the employer between 1994 and February of 2005. He denied that the employee ever reported a work injury to him or that he had not had an injury report to complete. Mr. Wing testified that, between December 2004 and May 2005, the employee had had multiple opportunities to report an injury to him but had made no mention of a lump in his lower abdomen until May 10, 2005, after having experienced frustration over an expense check the day before. It was not until May 11, 2005, he testified, that the employee reported the hernia as a work-related injury.
In a findings and order issued March 17, 2008, the compensation judge found that the employee did not report any injury to the employer between December 7, 2004, and May 11, 2005. She accepted Dr. Saylor=s opinion that the incident on December 7, 2004, described by the employee was not a substantial contributing cause of the employee=s hernia. And she concluded that the employee had not shown by a preponderance of the evidence that he sustained an injury arising out of and in the course of his employment on December 7, 2004. The employee appeals.
STANDARD OF REVIEW
When an appeal is taken from a compensation judge=s factual findings, this court=s review on appeal is limited to a determination of whether the judge=s findings and order are Aclearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.@ Minn. Stat. ' 176.421, subd. 1(3) (1992). If, on the other hand, the judge=s factual determinations are adequately supported by substantial evidence, and not clearly erroneous, we must affirm. This court is not a finder of fact, and on appeal the court will not Aretry@ the factual issues which were before the lower court; thus, it is irrelevant whether different conclusions than those found by the compensation judge could also be reached on the evidence. Substantial evidence supports the findings if, in the context of the record as a whole, they Aare 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 the evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings must be affirmed. Id. at 60, 37 W.C.D. at 240. Similarly, A[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.@ Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229, N.W.2d 521, 524 (1975). Factfindings may not be disturbed, even though this court might disagree with them, Aunless 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.@ Id.
The employee contends that the compensation judge erred in finding that he failed to show by a preponderance of the evidence that he sustained an injury arising out of and in the course of his employment on December 7, 2004. Any confusion regarding the date of injury, he contends, is easily explained by the fact that his work shift began on December 7, 2004, but ended in the early morning hours of December 8. Further, he contends, Mr. Branstner was notified of the incident, but did not follow through with the employee=s request to document the injury. The employee contends also that the judge should have adopted Dr. Bristow=s causation opinion over that of Dr. Saylor. Dr. Saylor=s opinion that it was Aunusual@ that the employee did not have pain the following morning at his health center exam is not, he argues, evidence that the employee=s temporary improvement was not possible. He contends that his testimony and medical records more than adequately support his claim of a work-related injury and that the compensation judge=s decision should be reversed. We are not persuaded.
We would note initially that, even were we to interpret the records relied upon by the employee as supporting his 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). We do not believe that the judge was distracted by any issue as to the date of the alleged injury. Rather, it appears to us that the judge simply did not find persuasive the employee=s testimony that he attempted to report an injury on either December 7 or 8, 2004. Mr. Branstner, who was no longer employed at the employer at the time of hearing, testified that, had the employee reported an injury to him, a report would have been filed. He disputed the employee=s statement that the required forms were unavailable. It is clear from the judge=s findings and order as a whole that the judge accepted the testimony of Mr. Branstner over that of the employee and that this was a more important factor in her denial of the employee=s claim. The 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.
There was conflicting evidence at the hearing regarding causation of the employee=s hernia. It is evident to us that the compensation judge was persuaded by the finding of a hernia on the employee=s December 8, 2004, exam and by Dr. Saylor=s opinion on the subject. In her memorandum, the judge explained,
On December 8, 2004, the employee had a physical examination so he could be authorized to use the employer=s gym. The records show that the examining physician found a hernia. Mr. Wanecke did not complain of pain on December 8, 2004. Dr. Saylor=s opinion is persuasive that it would be unusual for him no[t] to complain of any type of groin pain or other symptoms. The employee also reported that his symptoms abated over several weeks. Dr. Saylor points out that if that is so, he would have expected Mr. Wanecke to have complained of some type of discomfort on December 8, 2004.
Where evidence is conflicting or more than one inference may be reasonably drawn from the evidence, the findings of the compensation judge are to be upheld. Redgate v. Sroga=s Standard Service, 421 N.W.2d 729, 40 W.C.D. 948 (Minn. 1988). The records of the Winona Clinic and the employee=s own testimony support Dr. Saylor=s conclusion that the employee=s work activities on December 7, 2004, were not a substantial contributing cause of the employee=s hernia condition. The compensation judge adopted the opinion of Dr. Saylor, finding that opinion to be more persuasive than the opinion of Dr. Bristow. We have frequently noted that it is the province of the compensation judge to choose between competing medical opinions. See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). The decision of the compensation judge made on the basis of that choice is generally to be upheld if the opinion relied upon has adequate foundation. See Smith v. Quebecor Printing, Inc., 63 W.C.D. 566, 573 (W.C.C.A. 2003), citing Nord, 360 N.W.2d 337, 37 W.C.D. 364; Voshage v. State (MN SCU), Winona State Univ., 65 W.C.D. 167, 173 (W.C.C.A. 2004), citing Nord, 360 N.W.2d 337, 37 W.C.D. 364. The employee does not challenge the foundation for Dr. Saylor=s opinion. We therefore affirm the compensation judge=s conclusion that the employee did not show by a preponderance of the evidence that he sustained an injury arising out of and in the course of his employment on December 7, 2004. Accordingly, the compensation judge=s decision must be affirmed.