JAMES A. CARLSON, Employee, v. CITY OF MINNEAPOLIS, SELF-INSURED, Employer/Appellant.

WORKERS= COMPENSATION COURT OF APPEALS

JUNE 3, 2002

HEADNOTES

EVIDENCE - DEPOSITION. A reference on the record to a particular statement in a deposition is sufficient for purposes of impeachment, and admission of the deposition transcript itself is neither required or necessary.  The compensation judge improperly considered the transcript of the employee=s deposition testimony as a whole as it was not offered or received into evidence and was not part of the hearing record.

APPEALS - FINDINGS OF FACT.  Pursuant to Minn. Stat. ' 176.371, a memorandum Ashall not contain a recitation of the evidence@ presented at the hearing.  Rather, a compensation judge must assure the findings of fact themselves are sufficiently detailed and specific to enable meaningful review.  The decision should include as many subsidiary facts as are necessary for an appellate court to determine the facts upon which the compensation judge relied in reaching the ultimate conclusion(s).  Where the compensation judge made a single conclusory finding, the case must be vacated and remanded for redetermination. 

Vacated and remanded.

Determined by Johnson, C.J., Wilson, J., and Stofferahn, J.

Compensation Judge:  John A. Ellefson

OPINION

THOMAS L. JOHNSON, Judge

The self-insured employer appeals the compensation judge=s conclusion that the employee=s November 13, 1997 injury caused or accelerated an onset of symptoms in the employee=s low back.  We vacate and remand for redetermination in accordance with this decision.

BACKGROUND

James A. Carlson, the employee, was involved in a non-work-related car accident in December 1993.  The employee was then a police officer for the City of Minneapolis, the employer.  A CT scan showed a free fragment herniated disc at L5-S1.  In December 1994, the employee saw Dr. Phudhiphorn Thienprasit for a neurosurgical consultation.  On examination, the doctor noted  positive straight leg raising with left-sided leg pain radiating into the foot.  Dr. Thienprasit later performed an L5-S1 hemilaminectomy on the left.  On January 19, 1995, Dr. Thienprasit prescribed a conditioning program with home exercise and felt the employee would be able to return to full-time duty by March 1995.  Effective March 6, 1995, Dr. Gary B. Johnson released the em­ployee to return to his job as a police officer, without restrictions.  Thereafter, the employee had no further medical treatment for his low back until November 1997.

On November 13, 1997, the employee, while working for the employer as a police officer, was involved in an automobile accident.  A car driven by the employee was struck by an oncoming car.  The employee estimated his speed was 10 miles an hour and the other driver=s speed was 30 miles an hour.  The self-insured employer admitted liability for a personal injury on that date.

On November 18, 1997, the employee saw Dr. Philip Oversten at the Allina Occu­pational Health Clinic complaining of neck pain radiating into the shoulders and headaches.  The doctor diagnosed a cervical sprain/strain and prescribed physical therapy.  On November 19, the employee saw a physical therapist at Abbott Northwestern Hospital and again complained of pain in the neck and upper back with constant headaches.  Physical therapy was commenced.  On Novem­ber 25, 1997, the employee told Dr. Oversten he continued to have aching discomfort in the base of his neck bilaterally into the shoulder blades.  Dr. Oversten diagnosed a neck and mid-back sprain/ strain.  On December 10, 1997, the employee saw Dr. Daniel Feely at Golden Valley Family Phy­sicians complaining of a sore neck following the car accident.  The employee stated his neck had improved but was still somewhat stiff and sore.  He denied any other joint problems.  Dr. Feely diag­nosed a cervical strain.

The employee next saw Dr. Oversten on February 17, 1998, and stated his upper back and neck pain had resolved but noted a gradual onset of low back pain over the past month.  The employee gave Dr. Oversten a history of his 1993 injury followed by a laminectomy and stated he recovered with no restrictions.  The doctor diagnosed mechanical low back pain which he found con­sistent with the 1993 injury.^[1]  The doctor prescribed further physical therapy.  On February 20, 1998, the physical therapist at Abbott Northwestern Hospital saw the employee and recorded a history of the November 13, 1997 motor vehicle accident followed by significant upper back and neck prob­lems.  The employee stated approximately one month ago his low back Awent out@ with subsequent bilateral low back stiffness with pain into his right knee and thigh.  Physical therapy was again insti­tuted.  The employee returned to see Dr. Oversten on May 5, 1998, with continued complaints of low back pain radiating into the right buttock.  The doctor again diagnosed mechanical low back pain and stated it was unknown whether this was related to the November 13, 1997 injury.  However, based on the employee=s recovery from his 1993 injury, the doctor found no direct relationship between the employee=s low back pain and that injury.  The doctor did note, however, the employee had sig­nificant degenerative disc disease at L5-S1. 

On February 22, 2001, the employee saw Dr. John G. Stark with complaints of back pain.  The employee gave the doctor a history of a previous laminectomy in 1994 from which he recovered until his November 13, 1997 car accident.  The employee believed his low back symptoms were caused or aggravated by the 1997 injury.  Dr. Stark diagnosed a probable annular tear or degeneration following a disc herniation aggravated by a motor vehicle accident.  By report dated May 10, 2001, the doctor opined the employee=s November 13, 1997 injury was a substantial contributing cause of his need for medical treatment thereafter, and opined the employee was in need of a single level L5-S1 lumbar fusion.  Dr. Stark further opined the employee=s pre-existing lumbar injury was aggravated in the motor vehicle accident of November 13, 1997, as substantiated by the employee=s new onset of back and leg symptoms related in the medical records.  In a report dated October 11, 2001, Dr. Stark stated: AThe patient had a motor vehicle accident on that date [November 13, 1997] and was made suddenly and permanently worse.  It is true that he had some preoperative complaint, but this was in the distant past and he was feeling well and normal until the November 1997 accident.@  (Pet. Ex. A.)  The doctor concluded that while the employee had pre-existing changes in his back, he suffered a permanent aggravation as a result of the 1997 injury. 

On July 10, 2001, the employee was examined by Dr. Paul T. Wicklund at the request of the self-insured employer.  As part of his examination, Dr. Wicklund reviewed the contempor­aneous medical records and concluded there was no indication in any of the immediate medical records of any irritation or aggravation to the employee=s low back following his 1997 injury.  Ac­cordingly, Dr. Wicklund concluded the 1997 injury did not cause the employee=s need for low back treatment after 1997.  Rather, Dr. Wicklund opined the employee was predisposed to low back prob­lems because of a congenital condition, the prior L5-S1 surgery and a degenerative disc problem.  The doctor concluded the employee did not sustain a lumbar spine injury in the 1997 car accident.  Had the employee injured his low back in 1997, Dr. Wicklund stated he would have expected the employee to have low back symptoms within two to three weeks of the date of the injury.

The employee filed a claim petition seeking payment of temporary total disability benefits as a result of his injury on November 13, 1997.  The case was heard by a compensation judge at the Office of Administrative Hearings on November 1, 2001.  In a Findings and Order served and filed November 14, 2001, the compensation judge found the employee=s November 13, 1997 injury caused or accelerated the onset of symptoms for the employee=s low back condition and awarded benefits.  The self-insured employer appeals. 

DECISION

The self-insured employer contends the compensation judge=s conclusion that the November 13, 1997 injury caused or accelerated an onset of symptoms in the employee=s low back is unsupported by substantial evidence.  They argue the only evidence supporting the judge=s deci­sion is contained in the employee=s June 28, 2001 deposition which was not introduced into evidence and could not, therefore, be relied upon by the compensation judge.  In response, the employee contends his deposition was incorporated by reference at the hearing and the compensation judge properly relied upon it.  Alternatively, the employee argues that even if the compensation judge=s reliance on the employee=s deposition testimony was improper, other evidence of record supports the judge=s deci­sion, including the employee=s testimony of a gradual onset of low back pain following his personal injury.  Because of the compensation judge=s reliance on the employee=s deposition testimony and the judge=s failure to make factual findings sufficient for an appellate review, we conclude the case must be remanded to the compensation judge.

1.  Deposition Testimony

The primary issue in the case was whether the employee=s low back condition was causally related to his November 13, 1997 injury.  Dr. Stark opined there was a causal connection.  Dr. Wicklund denied any causal connection, in part, because the medical records documented no com­plaints of low back symptoms until over two months after the accident.  The compensation judge acknowledged the contemporary medical records did not mention low back pain and stated Athere is other credible evidence that the employee did have low back symptoms by early December, which is within Dr. Wicklund=s two to three week time period.@  (Mem. at 3-4.)  The compensation judge then went on to cite, at length, from the June 28, 2001 deposition and concluded the employee=s depo­sition testimony was credible.  The compensation judge, in apparent reliance on the employee=s deposition testimony, found a causal connection between the employee=s low back condition and his work injury and awarded benefits.

Pursuant to Minn. Stat. ' 176.341, subd. 5, A[a]bsent a clear showing of surprise at the hearing or the unexpected unavailability of a crucial witness, all evidence must be submitted at the time of the hearing.@  The OAH rules of procedure further provide A[a]ll evidence to be con­sidered in the case . . . must be offered and made a part of the record in the case.@  Minn. R. 1415.2900, subp. 6.B.  AThe compensation judge shall not consider factual information or evidence which is not part of the record.@  Minn. R. 1415.3000, subp. 1.  Here, the June 28, 2001 deposition of the employee was neither offered or submitted nor received into evidence as part of the record.  (T. 25-26, 79-80.) 

Minn. R. 1415.2200 specifically addresses depositions.  Subpart 2.B. deals with deposi­tions to preserve testimony or to present testimony due to the unavailability of a witness.  This rule clearly contemplates the ad­mis­sion of such depositions into evidence in lieu of a witnesses=s tes­timony.^[2]  In this case, the employee was present and was the sole witness at the hearing.  Subpart 2.D. distinguishes between depositions taken for the purposes of presenting testi­mony and discovery depo­sitions.  In the case of discovery depositions, the original deposition must be filed with OAH, but Awill not be reviewed or used in any fashion by the compensation judge unless the deposition is formally entered as evidence in the case.@

The employee argues, however, the employer=s use of portions of the deposition dur­ing cross-examination of the employee is the equivalent of Aincorporation by reference,@ and the compensation judge did not err in relying on the employee=s deposition testimony as a whole.  We are not persuaded.  Coun­sel for the employer refer­red to the employee=s deposition on five occasions during extensive cross-examination, citing six pages in the 85-page deposition.  The pur­pose of the deposition reference in each instance was to impeach the hearing testimony of the employee.  Prior statements made by a witness may be used for non-hearsay purposes, including impeachment of a witness.  See Minn. R. of Evidence, Rules 612 and 613.  In such instances, a reference on the record to the parti­cular state­ment used for impeachment is sufficient, and admission of the deposition transcript itself into evidence is neither required nor necessary.  See, e.g., McKissic v. Bor-Son Constr., slip op. at 6 (W.C.C.A. Sept. 26, 2001).  We decline to consider appropriate use of portions of a depo­sition for impeachment purposes the equivalent of formal submission of the deposition transcript for con­sideration as part of the hearing record.

While a compensation judge is not bound by statutory rules of evidence or formal rules of pleading or procedure in determining the admissibility of evidence, Minn. Stat. ' 176.411, subd. 1, the document must at least be offered into evidence before admissibility becomes an issue.  The compensation judge improperly considered the transcript of the employee=s deposition testimony as it was not offered or received into evidence.  Accordingly, we vacate the compen­sation judge=s decision in its entirety and remand the case to the compensation judge.

2.  Findings of Fact

Despite the compensation judge=s reliance on the employee=s deposition, the respon­dent contends there is other credible evidence of record that supports the judge=s decision.  The employee asserts the record is replete with testimony that he had a gradual onset of low back pain after November 13, 1997.  (T. 48, 81, 93, 94-95, 113.)  This testimony, the employee contends, constitutes substantial evidence supporting the judge=s decision and he requests that this court affirm the award of benefits.  We decline to do so.

Minn. Stat. ' 176.371 requires a compensation judge to include in the findings and order Aa deter­mination of all contested issues of fact and law. . . .  A compensation judge=s decision shall include a memorandum only if necessary to delineate the reasons for the decision or to discuss the credibility of witnesses.  A memorandum shall not contain a recitation of the evidence presented at the hearing but shall be limited to the compensation judge=s basis for the decision.@   A compensa­tion judge must scrupulously assure the findings of fact themselves are sufficiently detailed and specific to enable meaningful review.  Northwest Publications, Inc. v. Anderson, 259 N.W.2d 254 (Minn. 1997).  Findings of fact should include as many subsidiary facts as are necessary to disclose to the appellate court the basis upon which the compensation judge reached the ultimate conclusion(s).  Woodrich Constr. Co. v. State of Minnesota, 177 N.W.2d 563 (Minn. 1970).

The compensation judge made only one fact finding on the issue of causation: AThe motor vehicle accident of November 13, 1997, caused or accelerated the onset of symptoms for the employee=s low back condition.@  (Finding 1.)  The compensation judge then reviewed in the memorandum, at length, the testimony of the employee and the medical experts.  We conclude the judge=s single factual finding fails to provide sufficient specifics or details to enable a meaningful review.  In the findings of fact, the compensation judge must weigh the evidence, determine the credibility of witnesses, choose among contested facts and draw appropriate inferences.  We, accordingly, vacate the decision of the compensation judge.  The case is remanded to the compensation judge to make factual findings and order, on the existing record, consistent with this decision.