DAVID TRIESCHMANN, Employee/Appellant, v. ALLIANT FOODSERVICE, INC., and SENTRY INS. GROUP, Employer-Insurer, and THERAPY PARTNERS (PTOSI) and INSTITUTE FOR LOW BACK & NECK CARE, Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

MARCH 19, 2002

 

HEADNOTES

 

CAUSATION - SUBSTANTIAL EVIDENCE; EVIDENCE - CREDIBILITY.  Based on her reasonable findings as to the employee=s lack of credibility, the record as a whole adequately supported the compensation judge=s conclusion that the employee did not injure his low back at work as claimed.

 

Affirmed.

 

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

Compensation Judge:  Cheryl LeClair-Sommer.

 

OPINION

 

DEBRA A. WILSON, Judge

 

The employee appeals from the compensation judge=s finding that the employee failed to prove that he sustained a work-related injury on January 11, 2001.^[1]  We affirm.

 

BACKGROUND

 

The employee was working for Alliant Foodservice, Inc. [the employer] on January 11, 2001, as a food delivery driver.  The employee had made five deliveries that morning before making a delivery of 47 cases of product, weighing a total of 1,029 pounds, to Murray=s Restaurant.  Immediately following that delivery, the employee drove to the Art Institute Culinary School [Art Institute] where he delivered 62 cases of product, weighing 863 pounds.^[2]  While at the Art Institute, the employee had a verbal confrontation with a customer, Chef William Niemer, during which he swore at Mr. Niemer.  While the employee was still at the Art Institute, Mr. Niemer called the employer to report the incident.  Under the Alliant Foodservice Work Rules, the employee was subject to immediate discharge for any major violation of company rules, and being discourteous to customers constituted a major violation.

 

The employee left the Art Institute and drove to a coffee shop, where he used the telephone to call Bill Becker, fleet manager for the employer.  The employee informed Mr. Becker that he had had an altercation with a customer at the Art Institute and that the customer had pushed him.  He further stated that he had felt a twinge in his back while picking up a case of butter during the Murray=s delivery and that the pushing incident had aggravated the injury.  The employee indicated that he would like to have his back checked out by a doctor, and Mr. Becker requested that the employee return his truck to the employer before doing so.  Shortly thereafter, the employee called Mr. Becker again, informing him that he had called the police to report the physical altercation at the Art Institute and that the police were going to transport him to the hospital.

 

The employee was taken by ambulance to Abbott Northwestern Hospital.  The emergency room nursing triage notes reflect complaints as A>pt. was pushed= - L Back/L flank pain - per paramedics - ? assault.@  The nursing assessment includes a history of AStates much lifting cases of food - also pushed by customer causing him to twist back.  Unsure cause of pain - no radiation.@  The emergency physician recorded the history as ANagging L back pain earlier, then minor physical altercation w/ customer, followed by progressive worsening.@  X-rays revealed mild degenerative changes at L5-S1 but were otherwise negative.  The employee was given medications and restricted to light-duty work, with no lifting or bending for two weeks.

 

The employee completed a statement on January 11, 2001, for the purpose of documenting the incident at the Art Institute.  In that statement, he mentioned that he had experienced a twinge of pain in his low back when Mr. Niemer pushed him backwards.  Also on January 11, the employee completed an Incident Investigation form, wherein he described the incident as A[c]hef put shoulder into my shoulder in a blocking fashion.  Twisted/Torque on Left Low Back.  Had earlier felt a twinge or pulling while lifting cases of butter at Murray=s Restaurant in Dwntwn Mpls.@

 

At the employer=s request, the employee was examined at the Airport Clinic on January 16, 2001.  At that time, he reported that he had experienced an acute onset of symptoms on January 11, 2001, when he was lifting a case of butter at work and that, although his symptoms had diminished significantly, he still noticed tightness in the left low back area.  On examination, Dr. Kevin O=Connell noted a slight tenderness with deep palpation but no spasm and normal range of motion.  He diagnosed a low back strain and released the employee to return to full duty on January 24, 2001.

 

On January 16, 2001, the employee was suspended from his job, pending further investigation into the confrontation with Mr. Niemer.  On February 15, 2001, he was terminated.

 

On January 30, 2001, the employee began treatment with Dr. Maria Zorawska, who recorded a history of sudden pain after lifting a heavy box at work on January 11, 2001.  Her examination revealed some loss of range of motion and tenderness over the left paravertebral area at the L4-5 and L5-S1 levels.  She referred the employee to physical therapy and restricted him to light-duty work.  When the employee was seen in follow-up on February 13, 2001, Dr. Zorawska recommended an MRI.  The MRI, performed on February 21, 2001, was interpreted as showing a small broad-based lateral disc herniation on the right at the L3-4 level.  Clinical correlation was recommended.

 

After reviewing the MRI scan, Dr. Zorawska opined that the employee=s back pain was due to an injury to the L3-4 disc, although she noted that his pain was on the opposite side from the herniation.  She recommended that the employee continue physical therapy and consider a facet joint injection at the L3-4 level.  The employee underwent the facet joint injection, but he experienced no improvement in his pain.  Dr. Zorawski=s treatment notes through June 21, 2001, reflect complaints of pain, some limitation of range of motion, and occasional tenderness with palpation.

 

On March 2, 2001, the employee filed a claim petition, seeking temporary total disability benefits from January 11, 2001, and continuing.  The employee described the injury as having occurred while he was lifting a case of butter at work.  The employer and its workers= compensation insurer answered the claim petition, initially admitting liability for the injury.  An amended claim petition was filed on April 23, 2001, adding a claim for penalties and medical mileage. 

 

The employee was examined by Dr. Paul Wicklund, at the request of the employer and insurer, on June 5, 2001.  The employee told Dr. Wicklund that he had developed low back pain while lifting a forty-pound case of butter and bending to the left.  He also told Dr. Wicklund that, when he got back in his truck, he had pain when he stepped on the clutch and that, at his next stop, he had an altercation with a customer where Athe customer bumped him backwards and this also aggravated his back pain.@  In his report dated June 9, 2001, Dr. Wicklund diagnosed a L3-4 disc herniation on the right, Acurrently neurologically silent without symptoms,@ and low back pain. 

 

The claim petition proceeded to hearing on September 5, 2001.  At that time, the employee was claiming a work-related injury in the form of a herniated disc at L3-4, related to lifting a case of butter at Murray=s and then being pushed by Mr. Nieman at the Art Institute.  The employee was seeking temporary total and temporary partial disability benefits continuing from January 12, 2001.  The employer and insurer denied primary liability. 

 

In a decision filed on September 5, 2001, the compensation judge found, in part, that the evidence did not establish the occurrence of a physical altercation between the employee and Mr. Niemer at the Art Institute on January 11, 2001, and that the employee had failed to prove a work-related injury on that date.  The judge went on to make findings relating to temporary total and temporary partial disability as it related to the employee=s Alow back condition.@  The employee appeals from the judge=s findings as to primary liability and temporary disability.

 

STANDARD OF REVIEW

 

In reviewing cases on appeal, the Workers= Compensation Court of Appeals must determine whether Athe 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 (1992).  Substantial evidence supports the findings if, in the context of the entire record, Athey 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, A[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, Aunless 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.

 

DECISION

 

The employee contends that, because the compensation judge found that the employee suffered from a low back condition that temporarily totally disabled him from January 12 through January 18, 2001, and that the employee was not involved in a physical altercation at the Art Institute, the only possible cause of the employee=s low back condition would be the butter-lifting incident at Murray=s.  As such, the employee contends, his condition is work-related.  We are not persuaded.

 

The compensation judge did make a finding that the employee was temporarily totally disabled for six days in January of 2001 Adue to the low back condition.@  However, the judge also clearly rejected, as not credible, the employee=s story of an injury during a physical altercation with Mr. Niemer at the Art Institute, and, in her memorandum, she noted that A[t]his lack of candor places the employee=s testimony as to the injury while lifting cases of butter in question.@  Assessment of a witness=s credibility is the unique function of the trier of fact.  Brennan v. Joseph G. Brennan, M.D., 425 N.W.2d 837, 839-40, 41 W.C.D. 79, 82 (Minn. 1988).  In this particular case, the record adequately supports the judge=s credibility assessment.

 

At hearing, the employee testified that, while lifting a case of butter at Murray=s, he Afelt a strong bunching or pulling in my left low back,@ that he tried to stretch out his back but Ait was sore,@ and that he continued working.  He also testified that, while he was unloading the product from the elevator at the Art Institute and taking it into the kitchen area, he continued to have pain in his left low back, which Aincreased substantially@ as he was driving away from the Art Institute, and that he had a problem stepping on the clutch of his truck.  On cross-examination, the employee conceded that, at his deposition on May 15, 2001, he had never mentioned having any pain at Murray=s with lifting butter, but only mentioned a Abunching,@Alike the muscles were bunching together,@ and Aa general fatigue in different parts of my body.@  The history of injury contained in the medical records also varies somewhat, and none of the medical records contains any mention of a substantial increase in pain with driving away from the Art Institute.^[3]  Also, many medical records report the employee being pushed by a customer at the Art Institute, an incident which was not corroborated by witnesses and which the compensation judge found did not happen.^[4]  

 

In addition, while the employee did make a timely report of the alleged injury, he had been instructed to report any work injury immediately, yet he did not call in and report an injury while at Murray=s or when driving between Murray=s and the Art Institute.  At hearing, on cross-examination, the employee testified that the nearest phone that he was aware of was located at the Art Institute and that it was his intention to report the injury there, but, Abecause of the actions of the chef, I decided I should leave the building out of fear of my safety.@  However, the employee admitted that he did not call upon arriving at the Art Institute and, in fact, he unloaded  863  pounds of product at the Art Institute, with no visible appearance of injury or physical impairment.^[5]  No call was made about an alleged work injury until after the confrontation with Mr. Niemer at the Art Institute, which the employee knew had been reported to the employer, and which was grounds for termination.  The compensation judge was entitled to consider these circumstances in evaluating the employee=s claim.

 

The employee also contends that, because the medical records consistently contain a history of back pain during a lifting incident at Murray=s, and because there is no evidence of any superceding, intervening injury thereafter, the compensation judge was obligated to find a work-related injury or to explain what did in fact cause the employee=s back complaints.  We note, however, that the medical records do not consistently reflect a history of low back pain from lifting at Murray=s.  In addition, the employee was claiming a work-related injury in the form of a herniated disc at L3-4, on the right side, but the employee=s reports of pain have consistently been to the left lower back, and Dr. Wicklund opined that the L3-4 disc herniation was asymptomatic.  In any event, we think that, in a case like this, a compensation judge may reject an employee=s claim without making findings as to an alternative cause for the employee=s condition.

 

This is a difficult case.  Undoubtedly, a different compensation judge could have found the evidence sufficient to establish a work-related injury, but the inconsistencies in the record, when combined with the compensation judge=s finding as to the employee=s Alack of candor,@ provide substantial evidence to support the compensation judge=s finding that the employee did not prove a work-related injury on January 11, 2001.  It is not the role of this court to evaluate the credibility and probative value of witness testimony or to chose different inferences from the evidence than those drawn by the compensation judge.  Krotzer v. Browning-Ferris/Woodlake Sanitation Serv., 459 N.W.2d 509, 43 W.C.D. 254 (Minn. 1990).

 

The compensation judge also made findings regarding temporary total disability, temporary partial disability, and job search.  Those findings were not necessary, as she found that the employee did not prove a work-related injury.  As we have affirmed the judge=s findings relating to the alleged work injury, we need not address the other issues raised on appeal.