RONALD STROHECKER, Employee, v. MIKE’S AUTO REPAIR & TIRE, L.L.C., and FEDERATED MUT. INS. CO., Employer-Insurer/Appellants, and CAMBRIDGE MED. CTR. and ALLINA CLINIC, Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
AUGUST 7, 2012
EVIDENCE - CREDIBILITY. The compensation judge’s finding that the employee sustained a work injury on February 7, 2011, is affirmed where the compensation judge found the employee’s testimony to be credible and based her determination on that testimony.
Determined by: Stofferahn, J., Milun, C.J., and Hall, J.
Compensation Judge: Peggy A. Brenden
Attorneys: Allen R. Webb, Savage, MN, for the Respondent. David N. Larson and Melissa S. Hareid, Fitch, Johnson, Larson & Held, Minneapolis, MN, for the Appellants.
DAVID A. STOFFERAHN, Judge
The employer and insurer appeal from the compensation judge’s determination that the employee sustained a work-related injury to his right knee and from the award of benefits. We affirm.
Ronald Strohecker began working as a mechanic for Mike’s Auto Repair & Tire in North Branch in 2001 or 2002. Mr. Strohecker claimed he injured his right knee at work on February 7, 2011.
According to his testimony at the hearing, Mr. Strohecker was working on a van on February 7 and was running a series of diagnostic checks on the engine. That work involved working under the hood and inside the van under the dash. As a result, he was in and out of the van numerous times throughout the day. At some point during the day, as he was climbing out of the van, he caught his right foot under the swing arm of the vehicle hoist and twisted his knee.
The employee reported the injury to his employer, Mike Olson, the next day. He also sought medical care on February 8 from his family doctor and gave a history of having injured his knee when he caught his foot under an “outrigger metal chassis support.” An MRI scan showed a “complex posterior horn medial meniscus tear” and surgery to repair the tear was ultimately done by Dr. Richard Birdwell.
The employer denied that the employee had been injured at work. Mr. Olson testified that the employee told him that the injury had happened after Mr. Olson had left the garage for the day and occurred at about 4:45 p.m. Mr. Olson also stated that a couple of years before this claimed injury, because of a break-in at a nearby business, he had installed motion-activated security cameras in his shop. Mr. Olson said he viewed video from the cameras for all of February 7 and saw no activity by the employee that was consistent with how the injury was said to have happened. Mr. Olson prepared a DVD from the video tape and this DVD was placed into evidence at the hearing. At the hearing, Mr. Olson was asked about a discrepancy between the amount of time shown on the DVD and the amount of time it took to watch portions of the DVD. Mr. Olson said that there was a lag in time between when motion or movement started and when the cameras started recording.
The employer and insurer also relied on information from the First Report of Injury that was provided by the employee which stated the injury was at 4:45. The employer and insurer also produced two recorded statements taken from the employee by the insurer. In the first one, taken on February 21, 2011, the employee said the injury happened at 4:45 after Mr. Olson had left for the day. In the second statement, taken on March 8, the employee was told of the existence of the video and warned that his claim would be turned into the Minnesota Fraud Bureau and was also told that felony charges were possible. Mr. Olson stated he did not leave the garage until after 5 p.m. and he saw no indication that the employee had been injured. He stated that the employee was not limping.
In response, the employee testified that he had been well aware of the surveillance cameras in the garage and that, while he was not certain of the exact time he was injured, his injury had happened in the way he had described. The employee also presented the testimony of Randall Nelson, another mechanic who had worked for the employer for approximately 20 years. Mr. Nelson testified that the employee had told him on February 7 that he had “tweaked” his knee while working on a van that afternoon. Mr. Nelson also said that when he and the employee were loading a space heater in the back of the van he noticed that the employee was limping. On cross-examination, Mr. Nelson stated that he had not seen the alleged incident and was working in another room when it happened.
The employee’s claims were heard by Compensation Judge Peggy Brenden on March 23, 2012. The parties stipulated that the employee’s claims for wage loss benefits, permanent partial disability, and medical bills would be paid if primary liability was found. The primary issue for the compensation judge was whether the employee had injured his right knee at work on February 7, 2011. In her Findings and Order of April 3, 2012, the compensation judge determined that the employee had sustained a work injury to his right knee and awarded benefits to the employee. The employer and insurer have appealed.
The position of the employer and insurer is simply stated. The employee had said in two recorded statements and in the information he gave for the First Report of Injury that he had been injured at 4:45 p.m. on February 7, 2011. Since the surveillance video showed no injury at that time and on that date, the compensation judge’s determination that the employee injured his knee at work is not supported by the evidence.
The compensation judge provided a detailed explanation of her rationale for accepting the employee’s “theory of the case” in her memorandum. She found three factors persuasive: 1. The employee’s explanation of how he injured his knee had never changed, even when he was threatened with possible criminal charges. 2. Mr. Nelson had noted that the employee was limping when they were loading the heater into the back of the van on the afternoon of February 7. 3. Given the good relationship the employee had with his employer and the number of years he had worked for the employer, it was unlikely that he would jeopardize that relationship by reporting a fake injury.
The compensation judge also provided an explanation for why she found the employer and insurer’s position less persuasive: 1. The quality of the video was poor and it could not be determined if the employee was limping. 2. The employee could have been mistaken about the time of the injury since he was in and out of the van all day. 3. The conclusions of Mr. and Mrs. Olson as to what the surveillance video showed are suspect because of the quality of the video.
The central issue in the hearing on this matter was the credibility of the employee. This court has repeatedly stated that making a determination based on witness credibility is uniquely within the province of the compensation judge. Smith v.Heartwood Constr., Inc., No. WC09-5019, (W.C.C.A. May 28, 2010); Sexton v. Alan Ritchey, Inc., No. WC11-5245, (W.C.C.A. Aug. 1, 2011); Hatch v. Langhoff Enters., 70 W.C.D. 59 (W.C.C.A. 2010); Lopez v. Dura Supreme, Inc., No. WC09-4991, (W.C.C.A. April 8, 2010).
In considering a case and weighing the credibility of witnesses, a compensation judge is able to observe witnesses as they testify and note their demeanor, whether they hesitate over an answer or perhaps sound too rehearsed in their testimony, whether a witness appears to be avoiding a question or is looking to an attorney for the answer. None of these important non-verbal communications are available to this court in its review of the written record. The employee was extensively and ably cross-examined and his credibility was thoroughly challenged. Nevertheless, the compensation judge found the employee to be credible and accepted his testimony that he was injured on the job. We are unable to conclude on the record before us that the compensation judge erred and must be reversed.
The decision of the compensation judge is affirmed.