MARY JO FLAHERTY, Employee/Appellant, v. GLOBE AVIATION SERVICES, and KEMPER INS. COS., Employer-Insurer, and BLUE CROSS/BLUE SHIELD OF MN, MINN. DEP=T OF HUMAN SERVS, ABBOTT NORTHWESTERN HOSP., and FAIRVIEW SOUTHDALE HOSP., Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

APRIL 17, 2003

 

 

HEADNOTES

 

EVIDENCE - BURDEN OF PROOF, CREDIBILITY.  Substantial evidence supports the compensation judge=s credibility determination and conclusion that the employee had failed to meet her burden of proof and establishing that she sustained a work injury.

 

Affirmed.

 

Determined by Stofferahn, J., Wilson, J., and Pederson, J.

Compensation Judge: Nancy Olson

 

OPINION

 

DAVID A. STOFFERAHN, Judge

 

The employee appeals from the determination of the compensation judge that she did not sustain work-related injuries to her cervical and lumbar spine and from the compensation judge=s denial of her claims.  We affirm.

 

BACKGROUND

 

Mary Jo Flaherty, the employee, claims that she sustained injuries to her lumbar and cervical spine on July 6 and 7, 2001, while she was working as a wheelchair aide for Globe Aviation Services, the employer in this matter.  Globe and its insurer, Kemper Insurance Company, denied liability.  On February 8, 2002, the employee filed a claim petition for benefits arising out of her claimed injuries.  The employee=s claims were heard by Compensation Judge Nancy Olson on July 16, 17 and 31, 2002.  Issues at the hearing, which are relevant to this appeal, were whether the employee had sustained a cervical or lumbar injury arising out of her employment on July 6 and 7, 2001, and whether the employee had provided adequate notice of her claimed injury.

 

The employee had a history of low back and cervical problems before her employment with Globe.  On June 13, 1990, the employee saw Dr. Lawrence Farber at the Noran Clinic at the referral of her chiropractor.  In her history with Dr. Farber, she referred to working in highway maintenance in 1977 or 1978 and stated that low back and leg pain began after loading signs into a truck.  She indicated that the symptoms which had brought her to the Noran Clinic were due to a flare up which had recently occurred.  A CT scan showed a large herniated disc at L4-5 and associated stenosis.  Dr. Farber also found spasm in the cervical spine.  Treatment consisted of medication and physical therapy. 

 

The employee also treated on a number of occasions at the University of Minnesota Clinics in the early 1990's.  The history there refers to a 1977 work injury as a highway maintenance worker.  She was treated with Flexeril and physical therapy.  In November 1994, she reported pain in her low back and in her left leg down to her ankle.  She was treated with physical therapy. 

 

The employee consulted with Dr. Stephen Kuslich for low back pain in March 1996.  In her history, the employee related to Dr. Kuslich that she had had low back problems since childhood when she had discomfort in her back and legs while playing active sports.  She stated her low back and leg pain was more severe in 1977 after doing heavy lifting while working as a highway maintenance worker.  The employee told Dr. Kuslich that she Aeventually changed jobs because of the strain on her back causing repeated symptoms.@  The employee indicated that her symptoms had returned in September 1995 after going on vacation.  She attributed the pain to sleeping on a soft bed and to lifting and carrying her two children.  Her symptoms at the time of her initial consultation were low back pain and intermittent right buttock and right posterior leg pain to the heel and also numbness in heel and bottom of the left foot. 

 

On April 4, 1996, Dr. Kuslich performed surgery on the employee=s low back.  He did a decompression and partial discectomy on the left at L4-5 and on the right at L5-S1 as well as a stenosis decompression at L4-5 on the right and at L5-S1 on the left.  The employee initially reported almost complete relief of her buttock and leg pain and noted that she had very little back discomfort.  She last saw Dr. Kuslich on July 22, 1996.  The chart notes for that date indicate that she was continuing to do well except for intermittent aching in her left leg and three episodes of sudden pain and numbness shooting into her right leg. 

 

The employee also treated with her family doctors at Richfield Medical Group after her surgery in 1996.  At the time of her visits there, she complained of right arm pain and numbness.

 

The employee had graduated from college in 1977.  After graduation, she went to work for the State of Minnesota as a highway maintenance worker.  In her deposition and hearing testimony she denied any injury from lifting signs into a truck.  She stated that she did not leave her employment with the state because of low back problems but rather because of the social isolation she felt from where she was living.  After leaving her highway job the employee worked for a number of years for the Wilder Foundation, doing therapeutic recreation with elderly patients. 

 

In February 1985, the employee went to work for Lund=s as a cashier at the Richfield grocery store.  The employee filled out a first report of injury (FRI) in October 1996, in which she reported a back injury of September 13, 1996.  In the FRI, the employee attributed her injury to repetitive stooping, twisting and loading of groceries while working the express lane.  The FRI indicated she was treating at Hub Chiropractic.  According to those records, the employee=s primary complaint was of mid-back and neck pain due to working on the express lane.  The employee had a number of visits at Hub Chiropractic through the end of 1996.  Lund=s and its insurer denied liability for the injury. 

 

At hearing, the employee testified that she had never filed any claim with Lund=s and that any paperwork was filed by the chiropractor=s office.  She described her treatment at Hub Chiropractic as being primarily preventive.  She stated it was Asomething I=ve done my whole life since college.@  She denied any cervical problems before her employment with Globe. 

 

The employee stopped working for Lund=s in November 2000.  The employee had a previous diagnosis of bipolar disorder and, according to her testimony, attendance problems related to her medical condition led to her termination from Lund=s.  Thereafter she worked for about three weeks for an electronic circuit board manufacturer and for about ten weeks as a cashier at a different grocery store.

 

The employee applied for employment with Globe at the end of June 2001, seeking employment as a cart driver.  At the time, Globe provided various services at the Minneapolis-St. Paul Airport, including security, wheelchair assistance to airline passengers, and transportation by golf cart to passengers within the terminal.  The employee completed her application and underwent classroom training as a wheel chair aide on July 2, 2001.  Her first day of work was July 6, 2001, when she was assigned to work a shift from 7:30 a.m. to 4 p.m.. 

 

The employee testified that she was assigned to work as a wheelchair aide on concourse F with a more experienced co-worker acting as a trainer.  She worked at times without that co-worker and on one of those occasions was required to push a passenger in a wheelchair up the ramp from the plane exit to the concourse.  The employee described the passenger as a very large woman weighing approximately 300 pounds.  She testified that by the time she had pushed the passenger to the concourse, she had pain in her back and legs.  The employee was met at the concourse by her co-worker who asked her how she had managed to push the woman by herself.  The employee claimed she told her co-worker about her pain.

 

The employee testified that about an hour later, she and the same co-worker had to transfer a large man from his seat in the airplane to a wheelchair and then pull him up the ramp.  The employee testified that after doing this, she had more intense pain in her neck, low back, buttocks, and the back of her calves.  Sometime later she told her co-worker that she was hurting and would have to go home early.  She testified that she also told her supervisor that she had hurt herself and couldn=t finish her shift.  The employee left work at about 2:30 p.m. according to her deposition testimony.  Before going home she stopped at the employer=s office to exchange her uniform pants and told the manager there that she was in pain.  They also had a short conversation about other workers not doing their share of the assignments. 

 

At the hearing, the employee=s co-worker, Karen Duhart-Cox, testified.  Ms. Duhart-Cox remembered the employee, remembered working with her and remembered some of their conversations.  She did not recall the incidents which the employee had related and did not recall any conversation in which the employee had stated she had been injured.  The employee=s supervisor, Jennifer Hart, testified.  She remembered the employee, in large part because the employee was quite talkative and shared personal information.  Ms. Hart was not aware that the employee had any physical problems on July 6 and stated that if she had been told of an injury, she would have reported it to her supervisor.  The time sheets for July 6 were introduced and indicated that the employee had not gone home at 2:30 p.m. but had worked from 9 a.m. to 4:30 p.m.  The Globe worker to whom the employee spoke about exchanging pants also testified.  He recalled the employee, recalled her complaints about some workers not doing their share but did not recall any indication from the employee that she had hurt herself.

 

The employee also worked on July 7, 2001.  She was scheduled to work from 7:30 to 4 p.m.  There were no specific incidents that day but the employee testified that there was an increase in her symptoms throughout the entire day.  She testified that she could not finish her shift, leaving even earlier than she had the day before.  Again, Globe employees could not recall any indication of a work injury on July 7 and the time records for that day indicate that the employee worked her entire shift. 

 

The employee was scheduled to work July 8 but stated she was unable to do so because of pain.  She called in and reported her situation.  The time records note that Acalled off, hurt/knee.@  A supervisor, Chris Heineck, provided a statement to Globe on September 6, 2001, which stated that the employee called in, complaining of her Alegs/ankles being sore and swollen.  At no time did she complain of back pain or soreness, only her legs.@ 

 

The employee did not return to work at Globe after July 7,2001.  She has not been employed anywhere since that time.

 

The employee had a previously scheduled appointment with her psychologist on July 9, 2001.  In the office notes for that visit is a notation that the employee was Aworking for Globe Aviation Services as a golf cart driver skycap on July 6^th and 7^th, injured self transporting clients from wheelchairs.@  This entry is found after the psychologist had completed her assessment and treatment notes for the visit.  The employee did not seek any care for her back until  July 23 when she went to Dr. Shona McKenzie at Hidden Health Chiropractic.

 

In the health history form that she completed for Dr. Mackenzie, the employee identified work injuries as a highway maintenance worker and doing therapeutic recreation with the elderly.  The employee identified her symptoms as being low back pain.  The employee treated with the chiropractor for five visits in July and August.  There is no reference to Globe Aviation in the records during that time although the doctor=s initial note stated that the employee=s  symptoms started two weeks ago after heavy lifting.  

 

The employee did not ask to have any information sent to Globe and she did not contact Globe until August 30.  On that date she called and reported that she had injured her low back, sustaining a herniated disc at L4-5 on July 6 and 7.  She did not refer to any neck complaints.  The employee was asked to come in and fill out an accident report but she did not do so.  At no time did the employee advise Globe that she believed she was medically unable to go to the Globe office.

 

On September 10, 2001, the employee presented at Fairview Southdale Hospital with back pain going down her buttock into the back of the leg.  The history given was of injuring her back two months ago at work.  An MRI on that date disclosed recurrent disc herniations at L4-5 and L5-S1.  The employee was admitted to the hospital and on September 12, Dr. Michael McCue performed a right L5-S1 hemilaminectomy and microdiscectomy.  The employee thereafter was under Dr. McCue=s care.  On October 31, the employee had additional surgery, a L5 laminectomy and right L5-S1 microdiscectomy. 

 

On November 30, 2001, the employee met with a nurse practitioner at Dr. McCue=s office for a post-surgery assessment.  She noted improvement in her radicular pain but complained of bilateral hand paresthesia, from the elbow to the forearm on the left and just involving the hand on the right.  The employee said she had occasional neck pain.  Dr. McCue recommended an MRI scan of the neck to evaluate for cervical radiculopathy.  At a return visit on January 14, 2002, no testing had been done and the employee now complained of constant neck and bilateral shoulder pain.  Dr. McCue saw the employee on January 28, 2002.  The MRI showed severe central stenosis at C4-5 and C5-6 due to centrally herniated discs.  He recommended an anterior cervical discectomy and fusion which was performed on February 19, 2002.

 

Dr. Robert A. Wengler evaluated the employee at the request of her attorney.  Based upon the employee=s history of her work activities on July 6 and 7 and on her history of the onset of symptoms on that date, Dr. Wengler concluded that the employee=s lumbar and cervical conditions, including the need for surgeries was the result of her claimed work injury. 

 

The employee was evaluated on behalf of the employer and insurer by Dr. Mark Friedland, who prepared a medical report and also testified by deposition.  It was Dr. Friedland=s opinion that the employee=s cervical condition was not due to her employment at Globe because she did not complain of cervical problems until November 2001, which would, in his  opinion, be inconsistent with an acute injury in July; because the employee advised her doctors in November 2001 that her neck pain had come on two months earlier; and because the radiographic study and surgery indicated the existence of a congenital pre-existing condition which Dr. Friedland found more likely to be causative of her symptoms.  He did not believe her lumbar condition was related to her work at Globe.  Of significance to Dr. Friedland was the operative report from her lumbar surgery which noted the existence of a calcified disc herniation, which would indicate to him that this condition Ahad been present for years previously.  It would not be consistent with an acute injury that occurred in July 2001.@ 

 

In her Findings and Order, served and filed September 17, 2002, the compensation judge determined that the employee had failed to establish by a preponderance of the evidence that she sustained a work injury to her lumbar and cervical spine on July 6 or July 7.  The compensation judge also concluded that the employee had not given notice of her claimed injury pursuant to Minn. Stat. ' 176.141.  The employee=s claims were denied.  The employee appeals.

 

DECISION

 

The employee argues that the compensation judge=s factual determinations are not supported by substantial evidence and that in accepting the opinion of Dr. Friedland the compensation judge committed legal error.  We are not persuaded.

 

The employee has the burden of proof in establishing by a preponderance of the evidence that she sustained an injury arising out of and in course of her employment.  Minn. Stat. ' 176.021, subd. 1.  The employee attempted to use her testimony to meet that burden.  The credibility of the employee therefore was a key issue in this matter.  The employee testified in extensive detail as to the manner of her work injury, relating details of conversations with other Globe employees.  The testimony of those employees was directly contrary to that of the employee.  To decide this matter the compensation judge had to make a determination as to which testimony to accept.  The compensation judge decided to accept the testimony of the employer=s witnesses and determined that the employee was not credible in her testimony.  We have consistently held that the determination of witness credibility is a matter for the compensation judge to decide and this court will not reverse that determination unless clearly erroneous.  Even v. Kraft Inc., 445 N.W.2d 831, 42 W.C.D. 220 (Minn. 1989).

 

In support of her position the employee has submitted a brief which summarizes the evidence in her favor.  We note however that the issue for our review is not whether there is evidence to support the appellant=s position but rather whether substantial evidence supports the decision of the compensation judge.  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54,  37 W.C.D. 235, (Minn. 1984).  There is substantial evidence in the record to support the conclusion of the compensation judge that the employee was not completely credible in her testimony.  The compensation judge in her findings has noted a number of inconsistencies between the employee=s  testimony and the records and between the employee=s direct examination testimony and cross-examination testimony. 

 

We find substantial evidence supports the position of the compensation judge that the employee was not credible.  Accordingly, the compensation judge was correct in concluding that the employee had failed to meet her burden of proof in establishing a work injury at Globe Aviation Services on July 6 and 7, 2001. 

 

The opinion of Dr. Friedland, as expressed in his report and testimony, also serves as a separate and independent basis for concluding that substantial evidence supports the decision of the compensation judge.  Dr. Friedland testified that the calcification and scar tissue found when the employee had her surgeries was inconsistent with an acute injury sustained in July 2001.  The employee claims that Dr. Friedland had inadequate foundation for his opinion but we do not find this to be so.  While there may be some minor differences in the history as assumed by Dr. Friedland and the testimony of other witnesses, those mistakes do not render Dr. Friedland=s opinion to have an inadequate foundation.  Foundation for a medical opinion may be established by a review of the records, examination of the employee and hypothetical questions, all of which were done here.  Scott v. Southview Chevrolet Co., 267 N.W.2d 185, 188, 30 W.C.D. 426, 430 (Minn. 1978).  It was not error for the compensation judge to rely upon Dr. Friedland=s opinion.  Dr. Friedland=s opinion serves as substantial evidence to support the determination of the compensation judge. 

 

In her brief, the employee raises an issue as to whether or not the compensation judge erred in finding that the employee had made a prior workers= compensation claim.  We see this not as a separate issue but rather of an element of the compensation judge=s credibility determination which we have previously affirmed.  The employee also argues that the compensation judge erroneously denied the employee=s claims because of lack of notice pursuant to Minn. Stat. ' 176.141.  Given our conclusion that substantial evidence supports the compensation judge that the employee did not sustain a work injury, the issue of notice is moot. 

 

The decision of the compensation judge is affirmed.