DONNA M. DAHLEN, Employee/Appellant, v. HIWAY AMOCO, INC./HENTGES OIL, INC., and MINNESOTA ASSIGNED RISK PLAN/BERKLEY RISK ADM’RS CO., Employer-Insurer.
WORKERS’ COMPENSATION COURT OF APPEALS
JUNE 7, 2012
ARISING OUT OF & IN THE COURSE OF - SUBSTANTIAL EVIDENCE. Substantial evidence supports the compensation judge’s determination that the employee failed to prove that she sustained an injury to her ankle at work.
NOTICE OF INJURY - SUBSTANTIAL EVIDENCE. Substantial evidence supports the compensation judge’s finding that the employee did not provide timely notice of injury as required by Minn. Stat. § 176.141.
Determined by: Johnson, J., Wilson, J., and Hall, J.
Compensation Judge: Nancy Olson
Attorneys: Steven J. Drummond, Drummond Law Office, Alexandria, MN, for the Appellant. Kim D. Amundson, Law Offices of Elizabeth Holden Hill, Minnetonka, MN, for the Respondents.
THOMAS L. JOHNSON, Judge
The employee appeals the compensation judge’s finding that she did not prove that she sustained a personal injury on March 9, 2009, and the judge’s finding that the employee failed to provide notice of an injury as required by Minn. Stat. § 176.141. We affirm.
Donna M. Dahlen, the employee, on March 9, 2009, worked as a clerk at a convenience store/gas station owned and operated by Hiway Amoco Inc./Hentges Oil Inc. Located in front of the convenience store were several pallets upon which were stacked bags of water softener salt that were delivered wrapped in plastic. On March 9, 2009, the employee testified, she cut the plastic off the pallets with a knife and was brushing the snow off the pallets with a small whisk broom. In so doing, the employee testified, she placed her left foot between two pallets. As she pulled her foot out from between the pallets, the employee stated she experienced immediate onset of pain and her foot began to swell. The employee remained at work until 11:00 p.m., the end of her regular shift, and then she closed the store. The following day, the employee spoke with Joan Barsness, her supervisor. The employee testified she told Ms. Barsness that she injured her foot while cleaning snow off the pallets of salt.
Ms. Barsness testified that on March 10, 2009, she saw the employee limping and asked her what happened. Ms. Barsness stated the employee did not tell her she injured her foot at work and only replied that it was not a big deal and that she would be fine. Ms. Barsness told the employee she needed to go to the doctor. Ms. Barsness further testified that the Hiway Amoco Store has two glass doors with a row of windows between them. She testified that six pallets of softener salt were stacked below the windows, between the two glass doors. Ms. Barsness testified that the pallets needed to be tightly butted together or the doors to the store would not open. She conceded, however, that she did not, on March 10, 2009, examine the actual location of the pallets in front of the store.
Ben Hentges, the manager of the store, testified that each pallet of rock salt weighs approximately 2,500 pounds and stated he was present when the pallets were delivered and directed where they were placed. Mr. Hentges testified that in order to get the front doors open, the pallets need to be butted tightly together. Mr. Hentges admitted he did not examine the status of the pallets on March 9 or March 10, 2009. However, he testified that the employee could not have injured her foot in the manner she described because there would have been insufficient room between the pallets for her foot. Mr. Hentges also testified, “I don’t think I can get my hand through the pallets, let alone a foot, as tightly as we have to place them in order to open the front doors.” (T. 62.) Mr. Hentges testified the employee never told him she sustained an injury at work. He stated his first notice of the employee’s claimed injury was with service of the employee’s claim petition in August 2010.
The employee first sought medical treatment for her ankle on March 17, 2009, from Heather Reeve, PA-C. Ms. Reeve’s chart note states, “47-year-old female in today for follow up. Also injured her left ankle. She thinks the injury happened about a week ago yesterday. She twisted her ankle, has pain with weight bearing, has had swelling off and on. She has been icing it.” (Pet. Ex. 2.) An x-ray showed a fracture of the distal fibula and tibula. The employee was provided with a Cam walker. The employee followed up with Ms. Reeve who diagnosed plantar fasciitis associated with the distal tibia and fibula fractures.
On August 18, 2009, the employee was examined by Dr. Russell Sticha on referral from Ms. Reeve. The employee claimed a workplace injury, while cleaning snow off pallets when her foot got wedged between the pallets, causing injury to her ankle. The doctor’s chart note states, “The injury was not reported to Workers’ Compensation.” (Resp. Ex. 2.)
Dr. Nolan Segal, an orthopedic surgeon, examined the employee in January 2011, at the request of the employer and insurer. The doctor obtained a history from the employee, reviewed her medical records, performed a physical examination, and prepared a medical report. Dr. Segal stated it would have required a significant traumatic twisting injury for the employee to have sustained fractures of the distal tibula and fibula. The doctor opined that the act of just pulling her foot out from between pallets was not consistent with her sustaining a fracture. Dr. Segal concluded that the employee’s left ankle problems and fractures did not result from the March 9, 2009, incident as described by the employee.
The employee’s claim for workers’ compensation benefits was heard before Compensation Judge Nancy Olson. In a Findings and Order dated January 9, 2012, the compensation judge accepted the testimony of Ms. Barsness that the employee did not report a work injury and found the employee failed to provide notice of an injury as required by Minn. Stat. § 176.141. The compensation judge accepted the testimony of Mr. Hentges and Ms. Barsness that there was not sufficient space between the pallets for the employee to have placed her foot. The compensation judge further noted the opinion of Dr. Segal regarding the mechanism of injury. Accordingly, the compensation judge denied the employee’s claim. The employee appeals.
The compensation judge found credible the testimony of Mr. Hentges and Ms. Barsness that there was insufficient space between the pallets of salt for the employee’s foot. The judge also accepted Ms. Barsness’ statement that the employee did not tell her she was injured at work. The employee appeals the judge’s denial of her claim based upon evidence apparently obtained after the hearing.
Filed with the appellant’s brief was an affidavit from her attorney, Steven J. Drummond, together with pictures of the front of the employer’s store showing the location of the pallets of water softener salt. In the affidavit, Mr. Drummond stated that the pictures were taken on November 16, 2011, the date of the hearing. The pictures show that, on that day, the pallets of salt did not lie immediately adjacent to one another; rather, the pictures show a small space between the pallets. The appellant contends the photographs clearly demonstrate there was sufficient space between the pallets for a person’s foot. The appellant argues the photographs establish that the employer’s witnesses both deliberately presented false testimony to the court for the purpose of deceiving the court as to the true circumstances of the employee’s injury. The appellant contends the findings of fact and order were procured by fraud or other improper conduct of a party in interest and asks this court to reverse the findings of the compensation judge or, alternatively, remand the matter for the rehearing on all issues.
Admittedly, the photographs document that on November 16, 2011, the pallets of softener salt were not stacked immediately adjacent to each other and there was a space between the pallets. It is not, however, obvious from the photographs that the space between the pallets was of sufficient size to allow the entry of a person’s foot. Further, since the pictures were taken well over two years after the date of the claimed injury, they cannot establish the exact locations of the pallets on the date of the injury. At best, the photographs are only circumstantial evidence. Contrary to the contention of the employee, we are simply unable to conclude from the photographs alone that Mr. Hentges and Ms. Barsness deliberately presented false testimony to the court.
Even disregarding the testimony about the location of the pallets, there still exists substantial evidence of record which supports the compensation judge’s denial of the employee’s claim. Dr. Segal opined that the employee’s act of just pulling her foot out from between pallets was not consistent with sustaining the type of ankle fracture the employee sustained. When the employee saw Heather Reeve on March 17, 2009, she stated she injured her left ankle but gave no description of how the injury occurred. Neither did the employee tell Ms. Reeve that she injured her left ankle at work. The first medical record containing the history of an injury caused by the employee’s foot being wedged between two pallets was not until August 18, 2009, in the office notes of Dr. Sticha. Ms. Brsness testified the employee did not report a work injury to her. This testimony is corroborated by Dr. Sticha’s August 18, 2009, chart note which states the injury was not reported to workers’ compensation. This evidence supports the compensation judge’s decision that the employee’s ankle condition did not arise out of her employment and the conclusion that the employer did not have timely notice of the occurrence of an injury as required by Minn. Stat. § 176.141. Accordingly, the decision of the compensation judge is affirmed.
 This court’s review on appeal from the findings and order of a compensation judge is generally limited to the evidence submitted to the compensation judge. We reviewed evidence submitted post-hearing in this case, because of the allegations of fraud.