MORGAN H. HATCH, Employee, v. LANGHOFF ENTERS. d/b/a SUBWAY and RAM MUT. INS. CO., Employer-Insurer/Appellants.
WORKERS’ COMPENSATION COURT OF APPEALS
JANUARY 25, 2010
EVIDENCE - CREDIBILITY. The compensation judge evaluated the employee’s testimony and found him to be credible. There is no basis in the record for this court to conclude that the compensation judge erred in this assessment.
CAUSATION – SUBSTANTIAL EVIDENCE. Substantial evidence supports the compensation judge’s finding that the employee sustained an injury on October 3, 2008, that arose out of and in the course and scope of his employment, and that his injury resulted in physical restrictions and limitations as well as disability from employment for periods of time in 2008 and 2009.
Determined by: Rykken, J., Stofferahn, J., and Johnson, C.J.
Compensation Judge: Janice M. Culnane
Attorneys: Lorrie L. Bescheinen, Borkon, Ramstead, Mariani, Fishman & Carp, Minneapolis, MN, for the Respondent. Howard Y. Held and Melissa S. Hareid, Fitch, Johnson, Larson & Held, Minneapolis, MN, for the Appellants.
MIRIAM P. RYKKEN, Judge
The employer and insurer appeal from the compensation judge’s finding that the employee sustained a low back work injury as a result of his work activities and that, as a result of his injury, he was temporarily partially and temporarily totally disabled between October 3, 2008, and March 29, 2009. We affirm.
On June 3, 2008, Mr. Morgan Hatch, the employee, began working for Langhoff Enterprises, the employer, at its Subway sandwich shop. He was responsible for a variety of tasks, including preparing sandwiches and other related tasks, and as a sandwich assembler he earned a weekly wage of $562.16. In the course of his employment on October 3, 2008, the employee stocked and put away boxes of product that had been delivered by truck to the sandwich shop. While performing those activities, and after lifting a five-gallon case of cola syrup, he noted a stabbing pain in his back with pain radiating into his legs.
The employee’s injury occurred early in the day on Friday; he continued to work throughout the day and did not advise other workers at the sandwich shop of his injury. The employee worked on Saturday and Sunday; his low back pain worsened throughout the weekend. On the following Monday, October 6, 2008, the employee consulted a physician, Dr. William Votel, at his primary care clinic, the Northfield/River Valley Clinic. The employee reported low back pain and numbness in his legs, with weakness in his left leg, and that his symptoms had begun after he had unloaded a truck and moved boxes of food. He advised Dr. Votel that his symptoms had worsened since his injury. Dr. Votel diagnosed a lumbar strain with a possible exacerbation of his lumbar disc disease.
Also on October 6, the employee advised the employer of his injury. The employer and insurer later stipulated that this notice was statutorily sufficient. The employer and insurer, however, denied primary liability for the employee’s work injury, contending that he did not experience a specific, traumatic injury on October 3, 2008, and that his medical treatment from and after October 6, 2008, was “part of an ongoing, existing, work injury” that occurred while the employee worked for a previous employer.
The employee’s medical records contain references to his earlier medical treatment for low back symptoms. In June 1999, the employee reported persistent low back pain of about two to three months duration, and was prescribed pain medication and aggressive physical therapy. The employee attended ten therapy sessions, following which his pain decreased and his range-of-motion increased. In January 2000, the employee consulted a physician, reporting that his past left-sided low back pain was exacerbated by his work as a cake decorator and the hunched-over position needed to perform that work. By January 17, 2000, the employee reported a flare-up of pain two months earlier and again on January 3, 2000, when he injured himself at work while unloading products from a truck. The employee’s pain and aching in his low back and legs continued following that injury, and he eventually consulted Dr. Francis Denis at the Twin Cities Spine Center. Dr. Denis diagnosed a left-sided herniation at the L5-S1 level, and performed surgery on the employee in the nature of a hemilaminectomy-discectomy, on March 1, 2000. Dr. Denis released the employee to return to work within restrictions by mid-April 2000, and later assigned a 10% whole body permanent partial disability rating. Dr. Denis concluded that the employee would reach maximum medical improvement (MMI) by March 2001.
The employee’s medical records show occasional medical consultations between 2004 and 2008. In February and March of 2004, the employee reported recurrent low back pain with symptoms reminiscent of his previous herniated disc. The next reference is in August 2005, when the employee reported neck and shoulder pain, with some slight low back pain, following a motor vehicle accident. He required no treatment for his low back symptoms at that point. In November 2005, the employee reported low back pain that had continued since his earlier surgery, but by December 2005, the employee reported that he was “completely back to normal,” that he continued doing exercises, and was not restricting himself. At that point, the employee underwent a physical examination in anticipation of enlisting in the Army. In December 2005, a physician at the Northfield Clinic drafted a letter on the employee’s behalf, advising that the employee had entered in an unrestricted exercise program resulting in total resolution of his low back symptoms, that the employee required no restrictions, was expected to do well with rigorous physical activity, and that the physician supported the employee’s plans to enlist in the Army.
On February 20, 2006, the employee consulted his former surgeon, Dr. Denis, whom he last saw in April 2000, and reported that he had not experienced any significant pain in the past several years; Dr. Denis concluded that the employee’s current work-out routine was keeping him in excellent shape, and that the employee could return to full lifting capacity without significant limitations as long as he kept up his work-out routine. In October 2007, the employee consulted one of his family physicians concerning low back pain, and was referred to a trial course of physical therapy; the employee attended two physical therapy appointments but there is no reference to any additional treatment. On August 6, 2008, the employee consulted a physician on an issue unrelated to his low back, and referred to his chronic back pain after lumbar surgery as an occasional sharp pain in his left sciatic area with no persistent numbness.
Following his October 3, 2008, injury, the employee again consulted Dr. Votel and reported that his symptoms had improved but that his radiculopathy and tingling persisted, as did the numbness in his left leg. Dr. Votel noted that the employee had positive results on a straight leg raising test, and assessed a likely herniated disc at the L4-5 level. Dr. Votel referred the employee to Dr. Scott Koehler, in the same clinic’s occupational medicine department. On October 20, 2008, the employee underwent an MRI scan of his lumbar spine, which was interpreted as showing advanced degenerative disc and endplate changes at the L5-S1 level, and mild bilateral bony foraminal narrowing at the L5-S1 level, with no evidence for recurrent disc herniation at that level, or at any other level. Dr. Koehler examined the employee on October 22; the employee reported continued pain that was worsened with walking, standing, sitting and lying, and generalized weakness in his left leg. Dr. Koehler diagnosed a L5-S1 disc injury with recurrent left leg radiculopathy, noting that there was evidence of minor disc bulging on top of the old degenerative disc and facet. He recommended work restrictions, including a limit on his lifting, carrying, pushing, pulling and bending, and a restriction against any work below waist level. Dr. Koehler also recommended a trial of transforaminal epidural steroid injections and physical therapy for stabilization.
The employer and insurer maintained their denial of primary liability for the employee’s injury. He continued to work for the employer within restrictions until October 28. By November, the employee moved to Hinckley where he and his wife rented a home from a family member. He remained off work until December 21, 2008, and then began working on a part-time basis as a cook, for Golden Horizon, where he worked through late February 2009. He then obtained full-time employment as a chef for Grand Casino Hinckley, and after March 29, 2009, he earned wages comparable to those he earned at the time of his injury in October 2008.
On December 10, 2008, the employee filed a claim petition, seeking payment of temporary disability benefits. In their answer to the claim petition, the employer and insurer denied primary liability, alleging that the employee’s low back condition was entirely related to his pre-existing condition or to an injury unrelated to his work for the employer.
On December 17, 2008, Dr. Koehler prepared a “certificate of work injury” in which he related the employee’s condition to a new work-related injury. He stated that the employee had aggravated his lumbar spine with a new injury on October 3, 2008, and that the employee had a new radicular leg pain since his 2008 injury that was not present before his 2008 injury. According to the latest chart note in the record from Dr. Koehler, he provided the employee with an injection on January 6, 2009.
On January 29, 2009, the employee was examined by Dr. Mark Gregerson at the request of the employer and insurer. Dr. Gregerson concluded that the employee’s activities at work for the employer on October 3, 2008, resulted in a temporary aggravation of his preexisting condition. He concluded that the employee’s L5-S1 disc herniation developed as a result of the employee’s injuries in 1999 and on January 3, 2000, and that there were no changes noted between the MRI scans taken of the employee’s lumbar spine in December 2005 and October 2008. Dr. Gregerson concluded that the epidural injection, which the employee had undergone earlier that month, was quite successful and that the employee had reached MMI from his 2008 injury. Dr. Gregerson also concluded that the employee had been capable of working within restrictions since his 2008 injury, and that it was appropriate for the employee to continue working within restrictions. Dr. Gregerson also recommended the employee to avoid heavy repetitive lifting in the future and to work within lifting limits, but he advised that those restrictions were related to the employee’s preexisting condition and not to his 2008 injury. Dr. Gregerson concluded that the employee had not sustained any additional permanent partial disability as a result of his 2008 injury, and that he did not require any ongoing medical treatment for his low back condition.
An evidentiary hearing was held on April 14, 2009, to address the employee’s claim petition. The employee testified at the hearing, as did five witnesses on behalf of the employer and insurer. In her findings and order served and filed June 16, 2009, the compensation judge concluded that on or about October 3, 2008, the employee sustained a low back injury which arose out of and in the course and scope of his employment, resulting in disability. The compensation judge concluded that the employee had physical restrictions and limitations placed on his activities as a result of his injury, and that he had been temporarily partially disabled between October 3, 2008, and October 28, 2008, and again from December 21, 2008 through March 29, 2009, as a result of the restrictions resulting from his injury. She also concluded that the employee was temporarily totally disabled from employment between October 29, 2008, and December 20, 2008, and awarded temporary partial and temporary total disability benefits accordingly. The compensation judge also found that, as of the date of the hearing, the employee had reached and was provided with notice of MMI.
The employer and insurer appeal.
The employer and insurer appeal from the compensation judge’s finding that the employee sustained an injury on October 3, 2008, in the course and scope of his employment. The employer and insurer’s arguments are based primarily on the premise that the employee lacks credibility concerning both the circumstances surrounding his injury and the reporting of his injury. They cite to inconsistencies between the employee’s testimony and that of his co-workers who testified at the hearing.
The employer and insurer first cite to the employee’s delay in reporting his injury to management staff. Although they acknowledge that the employee provided statutorily sufficient notice, the employer was not notified immediately of the employee’s symptoms that resulted from lifting products, and they question the employee’s veracity concerning the occurrence of an injury. Although the employee claims to have sustained his injury on Friday, October 3, and although he worked on both Saturday and Sunday, he did not report his injury to supervisory staff until Monday, October 6, and did so via a text message. The employee testified that he tried calling a supervisor on the date of injury and left him a message, and that the supervisor and store owners were “unreachable” from Friday, October 3, through Monday, October 6, because they were out of town at a management meeting. The employer and insurer questioned this reporting delay and presented testimony that contradicted the employee’s account. The supervisor to whom the employee reported his injury testified that he was at the store for part of the day on October 3, and that he did not leave town until Sunday, October 5, 2008, and therefore could have been reached by the employee.
The record includes varying reports as to the employee’s timing of his injury report. The employer and insurer argue that these discrepancies are relevant to the compensation judge’s assessment of credibility, but contend that the compensation judge failed to mention these discrepancies in her findings and order. We disagree. It is evident that the compensation judge reviewed the witness testimony carefully, and cited to numerous portions of the testimony presented by the employer’s witnesses in order to respond to arguments raised by the employer and insurer at the hearing.
The employer and insurer also rely on video taped information recorded by the security camera at the jobsite. (Employer’s Ex. 6.) The security video tape that recorded work activities in the employer’s stock room showed the employee putting away product that was delivered by truck. The employer and insurer contend that there is no depiction of any injury sustained by the employee. They also argue that the video tape does not demonstrate any difficulties the employee had with his physical duties after the alleged injury, but instead “clearly shows the employee working at a regular pace after his alleged injury.”
Co-worker witnesses also testified about their observations of the employee’s behavior after his injury. One co-worker testified that she watched the employee put away products on the date of injury, and that, even though she did not witness his injury, she did not hear him yell out in pain nor did she observe the employee acting any differently that day. None of the co-workers who saw the employee on the date of injury noticed any limping or pain behavior that day. In addition, the employee testified that he did not ask for any assistance with performing his job duties on the weekend following his injury, even though co-workers testified that it is generally commonplace for co-workers to ask each other for help when needed. The employer and insurer argue that testimony provided by co-workers augments the security video tape and presents persuasive evidence in contradiction to the employee’s testimony.
The compensation judge addressed the security video tape and outlined what was depicted on the video tape, including that products were delivered to the store and left in stacks in various parts of the store for staff to put away or stock onto shelves. The compensation judge advised that she had reviewed and “considered the video and was forced to conclude it was not persuasive.” As to the quality and import of the video, the compensation judge concluded that:
The video confirms that the employee put away the delivered product and that other co-workers assisted with the stacking of supplies. Not all of the stacking of the product was shown on camera. The video was choppy at times, perhaps because it was a surveillance video. This surveillance video cannot be used to demonstrate the presence or absence of pain behavior. Given the quality of the video, all of the individuals in the video looked to be at time stiff and at other times gliding, as if on a movable sidewalk. The video neither proves nor disproves pain behavior.
The employer/insurer argue the video demonstrates inconsistencies in the employee’s deposition and hearing testimony of how product was stacked and put away. The Court disagrees. Because the video did not capture all of the activities of the morning, and because of the limited camera view, the video merely captures some of the activities of the employee. Because the video did not make a complete documentation of all of the stacking activities of Mr. Hatch, it cannot demonstrate the employee’s description of activities was inconsistent with his actual activities. Because all of the employee’s activities of the morning were not on video, the exhibit cannot prove the employee’s description as lacking credibility and reliability. Instead, it only shows some of his activities and it is unknown what activities occurred out of the camera range.
(Memo. at 6-7.) Based on our review of the video tape, we concur with the compensation judge’s assessment and find no basis to conclude that the judge erred by determining that the video could not prove that the employee’s description of his injury was unreliable.
The employer and insurer refer to additional contradictory evidence which undermines the employee’s credibility. The record contains many instances of testimony by co-workers that refute the employee’s testimony. For example, one co-worker testified that she observed the employee limping on the day after his injury, but that his limp was not constant and it changed from side to side. (T. 155.) The compensation judge referred to this particular witness testimony, and concluded that the testimony concerning the employee’s inconsistent limping was “vague as to time, place, and duration.” The compensation judge commented that
In addition, there was no medical support to indicate which side the employee should be limping on, given at least the acknowledged aggravation which Dr. Gregerson found. In addition, the surveillance video demonstrated parts of the store had narrow walking spaces with counters or shelves on the side. To what extent these affected or impacted the employee’s limp is unclear. Gait analysis is a sophisticated and complex diagnostic factor within the medical and orthopedic professions. A co-worker’s assessment that he seems to change his limp is not persuasive that his employee did not sustain an injury, in light of sufficient evidence to the contrary.
(Memo. at 8.)
Finally, and in reliance on Dr. Gregerson’s medical opinion, the employer and insurer contend that the employee’s alleged injury was merely a temporary manifestation of the symptoms he has experienced since his 2000 injury. The compensation judge, however, rejected Dr. Gregerson’s opinion, and determined that Dr. Gregerson did not offer a satisfactory explanation for his conclusion that the employee’s injury was a temporary aggravation of his pre-existing condition. She concluded that the “assessment by Dr. Gregerson seems to ignore the significant pain which the employee experienced after the October 3, 2008, injury and the ongoing problems which he experienced. Dr. Gregerson’s determination that the injury was temporary is offered without satisfactory explanation and is, therefore, rejected.”
The compensation judge instead accepted the opinion of Dr. Koehler, concluding that Dr. Koehler:
had both a clear understanding of the employee’s pre-existing problems and symptomatology, his problems/symptomatology following the work-related injury on October 3, 2008, the diagnostic scans taken, and the employee’s current symptomotalogy/disability. Dr. Koehler opined the employee sustained a new injury on October 3, 2008, which re-aggravated his lumbar spine. Dr. Koehler’s opinion carefully considers the treatment this employee has received and is accepted as reliable and persuasive.
(Memo. at 6.)
It is the compensation judge's responsibility, as trier of fact, to resolve conflicts in expert testimony. Nord v. City of Cook, 360 N.W.2d 337, 342, 37 W.C.D. 364, 372 (Minn. 1985). Adequate foundation is necessary for a medical opinion to be afforded evidentiary value. Winkles v. Independent Sch. Dist. No. 625, 46 W.C.D. 44, 58 (W.C.C.A. 1991). In this case, both Drs. Koehler and Gregerson had adequate foundation for their medical opinions, and we find no basis to reverse the compensation judge’s decision to rely on the causation opinion of Dr. Koehler.
The ultimate determination of medical causation is within the province of the compensation judge. Felton v. Anton Chevrolet, 513 N.W.2d 456, 50 W.C.D. 181 (Minn. 1994). In addition, determination of witness credibility is uniquely within the province of the factfinder and only under rare circumstances would a decision based on credibility be reversed. See Maher v. Viger, No. WC05-102 (W.C.C.A. June 28, 2005); Clemmer v. National Steel Pellet Co., slip op. (W.C.C.A. Dec. 13, 2004). We acknowledge that portions of other witnesses’ testimony are at variance with the employee’s testimony, but for this court to reverse the compensation judge’s finding on credibility would require accepting the other witnesses’ testimony over that of the employee. We decline to do so, based on our review of the record as a whole, including the hearing testimony. The compensation judge accepted the employee’s testimony concerning his injury and development of his symptoms, and specifically found that the testimony of the employee was credible and reliable, and we defer to the compensation judge’s assessment of the employee’s credibility. She summarized her conclusions as follows:
The Court reviewed the treating doctors’ documentation of the events of injury and finds that they sufficiently support the employee’s claim. Co-workers’ testimony that the employee did not act like he was injured are not persuasive. The medical evidence supporting an injury does not offer any requisite pain behavior or gait alternation. The lack of expected pain behavior, or pain behavior which could be demonstrated with surveillance video is not persuasive in light of the medical documentation of injury.
(Memo. at 8.)
In reviewing cases 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 (2006). 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). We conclude that, in view of the record as a whole, including medical records and the witnesses’ testimony, substantial evidence supports the compensation judge’s findings, and we therefore affirm.
 We note, however, that this same witness testified that the employee called her the evening of October 3; he advised her that his back was sore and that he had hurt his back earlier in the day with the shipment.