JOSEPH E. SHOALS, SR., Employee/Appellant, v. REGIONS HOSP., SELF-IN­SURED/COMPCOST, INC., Employer, and TWIN CITIES ANESTHESIA ASSOC., Intervenor.

 

WORKERS= COMPENSATION COURT OF APPEALS

JANUARY 28, 2002

                       

HEADNOTES

 

CAUSATION - SUBSTANTIAL EVIDENCE; EVIDENCE - CREDIBILITY.  Substantial evidence in the record as a whole supports the compensation judge=s determination that the employee=s work activities on January 23, 2001, were not a substantial contributing cause of his subsequent wage loss and need for medical treatment to his low back.

 

Affirmed.

 

Determined by: Johnson, J., Rykken, J., and Pederson, J.

Compensation Judge: James R. Otto

 

OPINION

 

THOMAS L. JOHNSON, Judge

 

The employee appeals the compensation judge=s finding that his testimony was not fully credible, the judge=s finding that the employee failed to prove he sustained an injury on January 23, 2001, arising out of his employment with Regions Hospital and the judge=s consequent denial of benefits.  We affirm.

 

BACKGROUND

 

Joseph E. Shoals, Sr., the employee, began working for Regions Hospital, the self-insured employer, in 1993 in the housekeeping department.  His duties included janitorial work, moving beds, stripping and waxing floors, cleaning carpets and dust mopping floors.  On the morning of January 23, 2001, the employee and his supervisor, LeRoy Engle, had the task of moving ten beds, including mattresses between floors of the hospital.  The employee and Mr. Engle each moved five beds.  The employee stated that while moving the third bed out of the elevator, the wheels on the bed locked up.  He testified that as he tried to maneuver the bed, he Acaught a cramp in my lower back.@  After they finished moving the beds, the employee and Mr. Engle moved some cribs and cots.  The employee did not report an injury to Mr. Engle while they were working together.  Thereafter, the employee went back to his routine tasks which included buffing floors and worked a full day.  The employee worked a full day on January 24, and testified he had no problems performing his work.  The employee also worked a full day on January 25, was off on January 26, and again worked full days on January 27 and January 28, 2001.

 

On January 29, 2001, the employee met with Mr. Engle and told him he was having problems with his low back.  The employee testified he told Mr. Engle his low back problems were work-related.  That day, Mr. Engle prepared a memorandum stating he met with the employee who reported he was experiencing low back pain and numbness in his left leg.  The memorandum states, and Mr. Engle testified, he asked the employee if his condition was work-related and the employee responded he did not know.  The memorandum states, and Mr. Engle testified, he told the employee that if the injury was work-related he should seek treatment at the employee health department or otherwise see his own doctor.  The employee left work early on January 29 to seek medical care.  At some time, an injury report was prepared by the employee identifying an injury while moving beds on January 23, 2001.  The employee testified he prepared this form on January 29, 2001, when he met with Mr. Engle.  The employee dated the form January 2, 2001.  He testified Thomas Collins, the employer=s housekeeping manager, was present during the January 29 meeting with Mr. Engle.  Mr. Collins and Mr. Engle testified the employee reported a work-related injury to them on February 2, 2001, and filled out the injury report that day.  Both Mr. Collins and Mr. Engle testified this was the first notice they had received from the employee of a work-related injury.

 

The employee testified he did not immediately report his injury because he feared losing his job.  He further testified he had not previously prepared an injury report form and was unfamiliar with the procedure for reporting an injury.  The employee later testified, however, he had prepared injury report forms on March 6, 1998 and October 29, 2000. 

 

According to the employee, he sought medical treatment with Dr. Robert Koch on January 29, 2001.  A medical record from HealthPartners documents a diagnosis of acute low back pain with sciatica resulting from an injury on January 23, 2001.^[1]  The employee returned to HealthPartners on February 14, 2001.  A Work Ability Report prepared on that date continues work restrictions from January 29, 2001.  An MRI scan was taken on February 16, 2001.  The scan revealed a moderate-sized broad-based protrusion of the L4-5 disc with posterior displacement of the left L5 nerve root and right-sided moderately severe foraminal stenosis.  The scan also showed disc degeneration, facet osteoarthritis with possible displacement of the left S1 nerve root at the L5-S1 level with moderately severe foraminal stenosis at that level.

 

On February 20, 2001, the employee saw Dr. Philippe J. Cooper.  The employee reported an onset of left-sided leg pain while pushing beds at work on January 23, 2001.  He complained of an onset of acute low back pain which increased over the next several weeks with associated left-sided leg weakness.  Dr. Cooper diagnosed left-sided L4-5 radiculopathy associated with a herniated disc at L4-5 and prescribed lumbar epidural steroid injections.  Dr. Cooper repeated the injections on March 13, 2001, and again on April 26, 2001. 

 

The employee was off work from January 29, 2001 through April 30, 2001.  There­after, Dr. Koch released the employee to return to work, subject to restrictions.  Apparently, the employee worked only part-time until July 17, 2001, when he returned to full-time employment.

 

The employee had a history of low back problems prior to January 23, 2001.  On June 23, 1987, the employee underwent a lumbar laminectomy for a herniated disc at L5-S1 on the left.  In 1989, the employee was seen at the St. Paul-Ramsey Medical Center complaining of low back pain after bending over while working in a car wash.  On examination, the doctor noted left-sided leg pain with a decreased left Achilles reflex.  The diagnosis was acute low back strain with a radi­cular component.  On August 10, 1993, the employee returned to the St. Paul-Ramsey Medical Center complaining of low back pain described as sharp and cramping with radiation. 

 

Dr. Paul Wicklund examined the employee on July 17, 2001, at the request of the employer and insurer.  The employee told Dr. Wicklund he sustained an injury on January 23, 2001, while moving beds at the employer.  The doctor diagnosed resolving low back pain and left leg pain.  Based upon his history and examination, Dr. Wicklund opined the employee sustained a temporary low back strain superimposed upon a pre-existing lumbar disc condition.  The doctor, however, premised his diagnosis on the assumption that the employee had provided an accurate history.  The doctor opined the employee could return to work at his regular job, opined he had reached maximum medical improvement (MMI) and needed no further medical care or treatment.

 

The employee filed a claim petition seeking payment of temporary total and tempor­ary partial disability benefits together with medical expenses.  The case was heard by Compensation Judge Otto on August 16, 2001.  In a Findings and Order filed August 21, 2001, the compensation judge found the employee=s testimony regarding the alleged January 23, 2001 injury was less than credible.  The judge further found the employee failed to prove his disability subsequent to January 23, 2001, was caused by a personal injury arising out of his employment with Regions Hospital.  Accordingly, the compensation judge denied the employee=s claim for benefits.

 

DECISION

 

The employee asserts the compensation judge=s credibility finding should be vacated.  This case, the employee argues, is Asimply one of a good judge misjudging a good person.@  The employee, an African-Amiercian, was raised in the deep south and contends he is illiterate.  Given his background, the employee asserts his initial reluctance to report an injury is understandable and to be expected.  The employee requests we remand this case to the compensation judge to re-evaluate the testimony in view of the employee=s background, literacy, education, culture and functional level.  We decline to do so.

 

Given the facts in this case, the compensation judge certainly could have come to a different conclusion.  Under this court=s standard of review, however, the issue is not whether the evidence will support alternative findings but whether substantial evidence supports the compensa­tion judge=s findings.  Where evidence conflicts or more than one inference can be drawn from the evidence, the judge=s findings are to be affirmed.  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).  In this case, there is substantial evidence in the record to support the judge=s findings.

 

The employee claimed he injured his back while working with Mr. Engle on the morning of January 23, 2001.  It is undisputed the employee did not report any injury to Mr. Engle until nearly two weeks thereafter.  In the interim, he worked full-time and was able to perform all of the duties of his job.  From these facts, the compensation judge concluded the employee did not sustain a personal injury on January 23, 2001.  The compensation judge reasoned that had the employee sustained an injury on that date he would have reported it sooner.  This is a reasonable inference to be drawn from the evidence.  Where evidence is conflicting or more than one inference may reasonably be drawn from the evidence, the findings of the compensation judge are to be upheld.  Redgate v. Sroga's Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988).  "Assessment of witness credibility is the unique function of the factfinder."  Tews v. Geo. A. Hormel & Co., 430 N.W.2d 178, 180, 41 W.C.D. 410, 412 (Minn. 1988).  A finding based on the credibility of a witness will not be disturbed on appeal unless there is clear evidence to the contrary.  See Even v. Kraft, Inc., 445 N.W.2d 831, 835, 42 W.C.D. 220, 225-26 (Minn. 1989).  Based on this record, we cannot conclude the compensation judge=s credibility determination was clearly erroneous.

 

In his memorandum, the compensation judge stated: ABased upon the evidence as a whole, Mr. Shoals sustained, at most, a temporary exacerbation of an underlying pre-existing con­dition on January 23, 2001 that does not rise to the level of a personal injury arising out of and in the course of one=s employment.@  The employee argues this statement by the judge is totally inconsis­tent with the judge=s credibility finding and requires a remand to the compensation judge.

 

As the employee correctly points out, a work-related aggravation or exacerbation of a pre-existing condition is a personal injury.  Wallace v. Hanson Silo Co., 235 N.W.2d 363, 28 W.C.D. 79 (Minn. 1975).  However, whether a personal injury is sufficiently serious to require medical at­tention or cause disability is a different question.  On this record, the compensation judge could reasonably conclude the employee=s work activities on January 23, 2001, were not a substantial or contributing cause of his subsequent wage loss and need for medical treatment.  The findings and order of the compensation judge must, therefore, be affirmed.