JOHN B. KONG, Employee/Appellant, v. PRIMEFLIGHT AVIATION SERVS./SMS HOLDINGS, INC., and ARCH INS. CO./GALLAGHER BASSETT SERVS., INC., Employer-Insurer, and MINNESOTA DEP’T OF HUMAN SERVS., Intervenor.
WORKERS’ COMPENSATION COURT OF APPEALS
May 28, 2010
CAUSATION - TEMPORARY INJURY. Substantial evidence, including adequately founded medical opinion, supports the compensation judge’s findings that the employee’s June 2007 and January 2008 injuries were temporary in nature and had resolved.
NOTICE OF INJURY. Where the compensation judge made erroneous conclusions regarding evidence of the employer’s actual knowledge of the employee’s injury, we vacate and remand for reconsideration of the judge’s findings on notice with respect to the May 20, 2008, injury.
PRACTICE & PROCEDURE - DEPOSITION. The compensation judge did not err by allowing the employer and insurer to submit a witness’s testimony by deposition where the employee was given an opportunity to cross-examine the witness by deposition.
JOB SEARCH - SUBSTANTIAL EVIDENCE. Substantial evidence supports the compensation judge’s finding that the employee did not conduct a diligent job search.
Affirmed in part, vacated and remanded in part.
Determined by: Rykken, J., Stofferahn, J., and Johnson, C.J.
Compensation Judge: Cheryl LeClair-Sommer
Attorneys: Charles M. Cochrane, Cochrane Law Office, Roseville, MN, for the Appellant. Timothy P. Eclov and Jenna Madden Powers, Johnson & Condon, Minneapolis, MN, for the Respondents.
MIRIAM P. RYKKEN, Judge
The employee appeals from the denial of his claims, arguing that medical opinion relied upon by the compensation judge did not have adequate foundation, that substantial evidence does not support the compensation judge’s findings that the employee did not conduct an adequate job search or give adequate notice of an injury, that the compensation judge erred by allowing deposition testimony of a witness, and that the judge erred by finding that the employee’s job had been terminated for misconduct. We affirm in part, vacate in part, and remand.
John B. Kong, the employee, started working for Primeflight Aviation, the employer, in 2000, transporting passengers at the Minneapolis/St. Paul airport using electric carts and wheelchairs, and assisting them with their luggage. On June 21, 2007, the employee sustained a work-related low back injury while pushing a passenger in a wheelchair. He treated with Dr. Xoua Thao, who diagnosed a possible soft tissue injury. A lumbar x-ray indicated mild degenerative changes in the lower lumbar facet joints. Dr. Thao recommended physical therapy and restricted the employee from heavy lifting or exertion. The employee was able to work his regular job after the injury, but would limit himself with heavy lifting. The employer and its insurer, Arch Insurance Company, admitted primary liability for this injury and paid medical benefits on behalf of the employee.
Dr. Thao referred the employee to Advanced Chiropractic Office, where the employee was seen on September 5, 2007. The employee reported ongoing low back pain that radiated down his leg, upper back pain and neck pain. He returned to Dr. Thao on September 12, 2007, reporting ongoing low back pain, and to the chiropractor, but did not receive further authorization for chiropractic treatment. The employee indicated that his low back pain continued, but he was able to do his regular job.
On January 31, 2008, the employee reported that he injured his low back, right shoulder, and upper back while lifting heavy luggage. He reported the injury and sought treatment at Lo Medical Clinic on February 5, 2008. Dr. Lo prescribed medication, gave the employee a ten pound lifting restriction, and referred the employee to a chiropractor in his office. The chiropractor’s examination indicated reduced range of motion in the neck and lower back, tenderness and spasm in the thoracic and lumbar spine, decreased sensation in dermatomal areas of the arms and legs, and positive orthopedic tests. The employee was able to continue working his regular job. He testified that he gave all restrictions slips generated by his treating physician and chiropractor to his supervisor, who told him to lift only what he felt he could do. On February 23, 2008, the employee underwent x-rays which indicated scoliosis and degenerative spurring. On March 6, 2008, the employee reported that he left work early the day before because he felt nauseated and dizzy and that his back pain worsened while sitting at work. The employee continued to report neck, upper back, and low back pain.
In April 2008, the employee was referred to Northwestern Health Sciences for evaluation of his pain complaints. The employee reported constant neck, upper back, and low back pain that radiated to his arms and legs when he did heavy lifting. Dr. Zachary Zachman, D.C., recommended follow-up treatment as well as home exercises. The employee indicated that his symptoms improved with treatment, including chiropractic adjustments and acupuncture, but that they would recur when he worked.
The employee reported that he sustained another injury to his shoulder and back when he drove a cart with a stuck steering wheel on May 20, 2008. The employer claims that there is no documentation of notice of this injury, and the employee’s manager testified that he was not aware of this injury. The employee again treated with Dr. Zachman, and reported constant intense pain in the same area as his previous low back injury, plus a new symptom of sharp pain radiating down the back of both legs. Examination indicated positive straight leg raising test, reduced lumbar range of motion, muscle tenderness, and tension in the lumbar and thoracic spine. Dr. Zachman provided the employee with a lifting restriction of no lifting over 25 pounds and advised the employee to avoid repetitive twisting. The employee testified that he gave these restrictions to his supervisor. Dr. Zachman recommended additional treatment which, according to the employee, he was not able to complete due to lack of authorization from the employer and its insurer.
On May 27, 2008, the employee consulted the Lo Medical Clinic, and received a prescription for pain medication. According to the employee, Dr. Lo later told the employee that the workers’ compensation insurer would not pay for his treatment. The employee was able to continue some treatment with coverage by other medical insurance, and he was able to continue working his regular job with modifications when necessary.
On July 29, 2008, the employee was terminated from his position by the employer for allegedly coming in late and leaving early and falsifying his time cards. The employee testified that he was not shown any documentation of this claim and had not been disciplined before the termination. He also stated that his manager had told him that his “medical bills were increasing and they were too much.” (T. 51-52.) The employee’s manager testified that the employee’s electronic parking records showed that the employee had left work early on days that his time card indicated that he had worked his entire shift, and that these discrepancies were the basis for the termination of his job. The employee continued to treat with Dr. Lo with medications; his restrictions were not changed. The employee was not provided with rehabilitation assistance, and did not conduct a job search on his own.
On November 28, 2008, the employee filed a claim petition for temporary total disability benefits, permanent partial disability benefits, a rehabilitation consultation, medical expenses, and mileage. The employer and insurer denied the claim.
On February 18, 2009, the employee was evaluated by Dr. David Florence at the employer and insurer’s request. Dr. Florence indicated that there were inconsistencies between the employee’s complaints and his range of motion, testing, and strength, that the employee appeared to have functional overlay, and that the employee had not sustained any permanent injuries and had no physical work restrictions. On March 23, 2009, the employee was evaluated by Dr. Robert Wengler. Dr. Wengler diagnosed low back pain with bilateral lower extremity radicular changes and multi-level degenerative facet changes, and recommended restrictions of no lifting over ten pounds, no repetitive bending, stooping, heavy pushing, pulling or working in position of prolonged postural stress. He also rated the employee’s low back condition as having a 10% permanent partial disability rating.
A hearing was held on May 15, 2009. Due to a language barrier, an interpreter assisted the employee at the hearing. The compensation judge found that the employee did not sustain permanent injuries on June 21, 2007, January 31, 2008, or May 20, 2008, that the employee had not given adequate notice of his May 20, 2008, injury, that the employee’s position was terminated for misconduct, that the employee had no ongoing restrictions, that he did not conduct a diligent job search, and that he had no rateable permanent partial disability. The judge also denied the employee’s claim for prescription medication expenses. The employee appeals.
STANDARD OF REVIEW
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. 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, “[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). 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 the evidence or not reasonably supported by the evidence as a whole.” Id.
The employee argues that the medical opinion from Dr. Florence, relied upon by the compensation judge, that he had not sustained any permanent injuries, lacks adequate foundation. Dr. Florence concluded that the employee sustained no work-related injuries on June 21, 2007, January 31, 2008, or May 20, 2008. However, the doctor also stated:
If it is ruled that [the employee] did sustain an injury on any of these alleged dates, there is no evidence it would have been more tha[n] a strain/sprain type of soft tissue injury, the effect of which would have been only temporary. This type of injury would have resolved in three weeks following the alleged injury date.
Foundation goes to the competency of a witness to provide an expert opinion. The competency of a medical expert depends both on the witness’s scientific knowledge and the witness’s practical experience with the subject matter of the offered testimony. Drews v. Kohl’s, 55 W.C.D. 33 (W.C.C.A.1996) (citing Reinhardt v. Colton, 337 N.W.2d 88, 93 (Minn. 1983)). Sufficient knowledge of the subject matter may be obtained by personal knowledge and experience, review of medical records, a hypothetical question or testimony at the hearing. Scott v. Southview Chevrolet Co., 267 N.W.2d 185, 30 W.C.D. 426 (Minn. 1978). Dr. Florence took the employee’s history, conducted an examination, and reviewed the employee’s medical records. This level of knowledge and experience is sufficient to provide adequate foundation for the opinion of a medical expert. The compensation judge could reasonably rely upon Dr. Florence’s medical opinion. Dr. Florence opined that the employee did not sustain any work injuries, and, if he had, that they were temporary and that each had lasted only three weeks in duration. Where there is adequate foundation for the opinion adopted by the judge, this court must uphold the compensation judge’s choice among medical experts. See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). Substantial evidence supports the compensation judge’s findings that the employee’s June 2007 and January 2008 injuries were temporary in nature and had resolved.
The compensation judge did not, however, rely upon Dr. Florence’s opinion that the employee had sustained no work injuries. She specifically found that the employee had sustained injuries on the above dates. As noted above, however, the compensation judge found that the employee’s June 2007 and January 2008 injuries had resolved, and also found that the May 20, 2008, injury was temporary. She relied, in part, on Dr. Zachman’s report of May 23, 2008, that the employee would be treated that day and during an anticipated 8 to 10 more visits over the next six weeks, with a return to full function.
Dr. Zachman had also advised that the employee should not lift over 25 pounds and that he should avoid repetitive twisting activities. The compensation judge did not rely on the portion of Dr. Zachman’s report in which he recommended restrictions, referring instead to his opinion that the employee could return to full function after he had undergone the recommended treatment. There are no further records from Dr. Zachman beyond his May 23, 2008, report. The employee testified that the employer and insurer would not pay for additional treatment so the employee did not receive the ongoing treatment recommended from Dr. Zachman; we note that the compensation judge did not address the fact the employee was not able to complete this treatment.
The compensation judge found that the employee had provided adequate notice of the claimed January 31, 2008, injury, based upon a first report of injury found in the employee’s personnel file, but that he had not provided the employer with adequate notice of the claimed May 20, 2008, injury, since there was no first report of injury in the employee’s personnel file for that injury. As a result, the compensation judge did not address the May 20, 2008, injury further since she found that the employee had not given adequate notice of this injury.
Minn. Stat. § 176.141 provides that no compensation for an injury shall be allowed unless the employer has “actual knowledge of the occurrence of the injury” or written notice is given to the employer. Generally, the statute requires that the employer must receive notice of an injury within 30 days of the injury or, in the alternative, within 180 days of the injury so long as the employee can show that the delay was “due to the employee’s . . . mistake, inadvertence, ignorance of fact or law, or inability, or to the fraud, misrepresentation, or deceit of the employer.” Minn. Stat. § 176.141. “The purpose of the requirement of actual knowledge or notice is to permit the employer to make such investigation as is necessary to determine liability after a claim.” Miller v. Peterson Constr. Co., 229 Minn. 22, 38 N.W.2d 48, 15 W.C.D. 513 (1949). While there is no first report of injury in the employee’s file for a May 20, 2008, injury, we note that the employee’s claim petition was filed within 180 days of the claimed May 20, 2008, injury. The compensation judge, however, indicated that the employee did not show the delay was “due to the employee’s . . . mistake, inadvertence, ignorance of fact or law, or inability, or to the fraud, misrepresentation, or deceit of the employer” under Minn. Stat. § 176.141.
Actual knowledge under the statute has been defined as information on which to base inquiry if the employer so desires or, at minimum, information such as a reasonable person would usually act upon in the ordinary course of human affairs. Nelson v. Reid & Wackman, 228 Minn. 137, 36 N.W.2d 544, 15 W.C.D. 479 (1949). The facts and circumstances of a traumatic injury or disability must be such as would put a reasonable person on inquiry that the disability is work-related. Pojanowski v. Hart, 288 Minn. 77, 81, 178 N.W.2d 913, 916, 25 W.C.D. 206, 209 (1970). The employee treated with Dr. Zachman on May 23, 2008. There is a work absence report from that date in the employee’s medical records, signed by Dr. Zachman and listing additional work restrictions, but this form is not in the employee’s personnel records, unlike other such forms. The employee testified that he turned in the work absence report form to his supervisor, Carrie (or Kari, spelling unknown), and told her about the injury. The compensation judge found that the employee’s testimony that he told his supervisor, Kelly, about the May 2008 injury was not persuasive since Kelly was not his supervisor at that time; his supervisor on that date was Carrie. The employee’s testimony at the hearing through the interpreter, however, clearly indicates that he testified that he told Carrie about the May 2008 injury, and that she was his supervisor at the time of his January 31, 2008, injury as well. (T. 47.)
The compensation judge also relied upon the employee’s manager’s testimony that he had not received notice of the May 2008 injury. The manager, however, had only been the employee’s supervisor from the end of May until the end of July, and testified that he had not even been made aware that the employee had been having problems with his back. (Paselk depo. at 35-36.)
Given the compensation judge’s erroneous conclusion that the employee had misidentified his supervisor, and that the manager testifying in the case did not even know the employee had back problems, we conclude that, in this case, there is no substantial evidence to support the finding that the employee did not give adequate notice of his May 20, 2008, injury to the employer. We vacate the compensation judge’s finding regarding notice of the May 20, 2008, injury and remand for reconsideration of the notice issue. Therefore, we also vacate the corresponding findings regarding permanent partial disability, work restrictions, a rehabilitation consultation, and medical expenses related to the May 20, 2008, injury, and remand these issues to the compensation judge for reconsideration.
The employee also argues that the compensation judge erred by allowing deposition testimony of a non-appearing witness and by finding any of that testimony credible. The witness, the employee’s manager, no longer worked for the employer at the time of the hearing. He did not appear at the hearing, and the compensation judge added a second day of hearing for the witness to appear. The witness again did not appear. The transcript includes no record of the discussions held on the second day of hearing. The judge allowed the employer and insurer to submit the transcript of the manager’s deposition into evidence and the employee was allowed to cross-examine that witness by deposition.
We note that a compensation judge is not bound by the common law or statutory rules of evidence, and that evidentiary rulings are within the sound discretion of the compensation judge. Minn. Stat. § 176.411, subd. 1; Minn. R. 1415.2900, subp. 6.A.; Bey v. Oxford Properties, Inc., 481 N.W.2d 40, 42, 46 W.C.D. 198, 201 (Minn. 1992); Ziehl v. Vreeman Constr. Co., slip op. at 5 (W.C.C.A. Oct. 15, 1991). In this case, the witness for the employer and insurer did not appear at the hearing, but the employee’s attorney was allowed to cross-examine him by deposition. The compensation judge’s evidentiary ruling is well within the wide discretion granted to compensation judges and will not be reversed by this court. Further, we also note that it is the trier of fact's responsibility to assess the credibility of a witness. Tolzmann v. McCombs-Knutson Assocs., 447 N.W.2d 196, 198, 42 W.C.D. 421, 424 (Minn. 1989) (citing Even v. Kraft, Inc., 445 N.W.2d 831, 835, 42 W.C.D. 220, 225 (Minn. 1989)). It is not the role of this court to evaluate the credibility and probative value of witness testimony and to choose different inferences from the evidence than the judge. Krotzer v. Browning-Ferris/Woodlake Sanitation Serv., 459 N.W.2d 509, 513, 43 W.C.D. 254, 260-61 (Minn. 1990). We conclude that the admission of the witness testimony by deposition and the judge’s reliance on any part of that testimony did not constitute error on the part of the compensation judge.
The employee also appealed the compensation judge’s finding that he was terminated from his position with the employer for misconduct. We note that in cases involving termination for misconduct, an employee’s right to temporary disability benefits is suspended until “it has become demonstrable that the employee’s work-related disability is the cause of the employee’s inability to find or hold new employment.” Marsolek v. Geo. A. Hormel Co., 438 N.W.2d 922, 924, 41 W.C.D. 964, 968 (Minn. 1989). That determination is to be made “upon consideration of the totality of the circumstances including the usual work search ‘requirements.’” Id. Therefore, an employee’s discharge for misconduct does not preclude a claim for wage loss benefits upon proof of a diligent job search. See Redgate v. Sroga's Standard Serv., 421 N.W.2d 729, 733, 40 W.C.D. 948, 954 (Minn. 1988) (to demonstrate entitlement to temporary total disability benefits, work-injured employees who are capable of working must make a reasonably diligent search for employment). A post-injury search for employment normally entitles the employee to benefits, provided the employee continues to be subject to physical restrictions related to the work injury. See Kautz v. Setterlin Co., 410 N.W.2d 843, 844, 40 W.C.D. 206, 207 (Minn. 1987). The issue before this court is not whether the employee was appropriately terminated for misconduct, but whether substantial evidence supports the compensation judge’s finding that he did not conduct an adequate job search during the period for which he claims temporary total disability benefits, a finding which the employee also appealed.
The issue of whether or not an employee has looked for work with reasonable diligence is generally viewed within the scope of rehabilitation assistance provided to the employee by the employer and insurer. Okia v. David Herman Health Care Ctr., 38 W.C.D. 261 (W.C.C.A. 1985); Westacott v. Formac Corp., 37 W.C.D. 79 (W.C.C.A. 1984). The employee in this case was not provided any rehabilitation assistance by the employer. However, “the failure of the employer to provide rehabilitation services does not eliminate the responsibility of the employee to make a diligent search within his limitations.” Brown v. Minneapolis Elec. Steel Castings, 39 W.C.D. 207, 209 (Minn. 1986); see also Priglmeier v. Steller Concrete & Masonry, 65 W.C.D. 384, 400 (W.C.C.A. 2005); Mattson v. State, Dep’t of Public Safety, 48 W.C.D. 77, 80 (W.C.C.A. 1992), rev’d on other grounds, 494 N.W.2d 884, 48 W.C.D. 84 (1993). A diligent job search is one that is reasonable under all the facts and circumstances. Bauer v. Winco/Energex, 42 W.C.D. 762, 768 (W.C.C.A. 1989).
In this case, employee admitted that he had not looked for work because he thought he could not do any heavy lifting with his restrictions, which was required in his previous employment for the employer and for his previous employment as an auto mechanic. “Whether an injured employee makes a reasonably diligent search for suitable employment is a question of fact,” and a compensation judge’s decision in that regard “must be upheld unless manifestly contrary to the evidence.” Hanmer v. Wes Barrette Masonry, 403 N.W.2d 839, 841, 39 W.C.D. 758, 761 (Minn. 1987), citing McClish v. Pan-O-Gold Baking Co., 336 N.W.2d 538, 36 W.C.D. 133 (Minn. 1983). The compensation judge could reasonably find that despite the lack of rehabilitation assistance, the employee's job search efforts fell below the reasonably diligent standard from the time he was terminated from his employment through the date of the hearing. Accordingly, we affirm the judge’s finding that the employee did not conduct a diligent job search between July 29, 2008, and the date of the hearing.
 The relevant portion of the transcript states:
Q. Who was the supervisor you told this to?
A. (Interpreter) Carrie.
Q. Is this the same supervisor that you had when you got injured in January of 2008?
A. (Interpreter) Yes, the same one.
Q. Okay. So it’s Carrie, not Kelley?
A. (Interpreter) Carrie.
 The statutory cessation and recommencement requirements under Minn. Stat. § 176.101, subd. 1, do not apply in this case since temporary total disability benefits have not been paid to the employee. Gledhill v. DuPont Villa Apartments, slip op. (W.C.C.A. Dec. 5, 2005); Griffin v. Fabcon, Inc., 59 W.C.D. 445 (W.C.C.A. 1999).