CHRISTOPHER D. GERMAN, Employee, v. IOWA BEEF PRODUCERS, SELF-INSURED/IBP, INC., Employer, and SPOMER MOTORS INC. and VIRGINIA SURETY CO./ADMIN=D BY CAMBRIDGE INTEGRATED SERVS. GROUP, INC., Employer-Insurer/Appellants, and BLUE CROSS/BLUE SHIELD OF MINN., Intervenor.

 

WORKERS= COMPENSATION COURT OF APPEALS

MAY 28, 2003

 

HEADNOTES

 

EXCLUSIONS FROM COVERAGE - JOB APPLICATION.  Where the employer=s query ACan you do the job?@ reasonably did not constitute a clear inquiry specifically into the diabetic employee=s physical condition or restrictions, and where the employee did, in fact, perform the jobs in question for almost three years before being treated for an ulcer on the plantar aspect of his foot, substantial evidence supported the compensation judge=s conclusion that the employer and insurer did not prove that the diabetic employee=s representation that he could do to the job constituted a knowing and willful false representation as to his physical condition, such as would bar his claim for benefits pursuant to the rule in Jewison v. Frerichs Constr., 434 N.W.2d 259, 41 W.C.D. 541 (Minn. 1989).

 

Affirmed.

 

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

Compensation Judge:  James R. Otto.

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

Spomer Motors, Inc., and its insurer appeal from the compensation judge=s finding of a Gillette injury^[1] and from his conclusion that the employee=s claim is not barred by the holding in Jewison v. Frerichs Constr., 434 N.W.2d 259, 41 W.C.D. 541 (Minn. 1989).  We affirm.

 

BACKGROUND^[2]

 

Christopher German=s medical and injury history is significant.  He has been an insulin-dependent diabetic since age seven or eight, and his medical records indicate that his diabetes has been poorly controlled, sometimes due to his own non-compliance with medical recommendations for its management.  The records also reflect a history of delayed healing following a fractured finger in 1994 and symptoms of diabetic neuropathy in 1996.

 

In July of 1993, Mr. German [the employee] commenced employment in the plasma room of Iowa Beef Producers [IBP], where he was responsible for processing plasma from the blood of cows.  The employee=s job in the plasma room included the tearing down, cleaning, and reassembling of plasma separating machines.  In order to perform this job, the employee was required to use a large wrench that was shaped like a tennis racket, with a circular head at the top that measured one and a half feet in diameter.  On January 30, 1997, after he had tightened a large nut on the top of the plasma separator, the employee injured his right foot when the wrench slipped from his hand and landed on the top mid portion of the foot.  The employee was twenty-six years old on the date of his injury.    

 

On February 14, 1997, the employee obtained an evaluation of his right foot by Dr. Greg Kuiper at the Luverne Medical Center.  Dr. Kuiper noted that deep tendon reflexes were neurologically absent in the ankle and that this was consistent with diabetic peripheral neuropathy.  The doctor expressed concern that the employee might have a Charcot=s joint^[3] in the foot.

 

On April 10, 1997, the employee was seen in consultation by orthopedist Dr. D. G. MacRandall.  Dr. MacRandall diagnosed an early onset of Charcot arthropathy of the right forefoot aggravated by the January 30, 1997, injury.  On May 22, 1997, the employee reported to Dr. MacRandall that he was no longer having any pain in the foot and was doing fairly well.  The doctor stressed to the employee, however, the importance of checking his foot on a daily basis because, A[w]ith his diabetic neuropathy and the like, he is going to be having an increased risk of developing more Charcot changes in his foot with time.@ 

 

On July 15, 1997, the employee sought a second opinion on his foot condition with podiatrist Dr. David Neese.  The employee advised Dr. Neese that he had had swelling and increasing instability in his foot since his injury of January 30, 1997.  Dr. Neese obtained x-rays, which showed severe joint disruption to the Lisfranc=s region, complete compaction with sclerosis of the first cuneiform, complete dislocation with fragmentation of the second metatarsal cuneiform, and loose body formation at the medial naviculocuneiform.  Dr. Neese diagnosed Charcot joint arthropathy.

 

On August 14, 1997, the employee returned to Dr. MacRandall with complaints of a worsening of his right foot symptoms.  Dr. MacRandall now diagnosed severe Charcot arthropathy of the right mid foot and referred the employee to orthopedist Dr. Harold Kitaoka at the Mayo Clinic.

 

Dr. Kitaoka examined the employee on January 20, 1998, and diagnosed neuropathic fractures of the right mid foot.  On January 22, 1998, the employee was seen by Dr. Kitaoka=s associate, Dr. David Haaland.  Dr. Haaland obtained a history of the incident of January 30, 1997, performed a physical examination, and reviewed x-rays.  The doctor diagnosed a traumatic incident involving the right foot, with disruption of the Lisfranc=s joint and the naviculocuneiform joint in a Charcot=s manner.  The doctor reported, AIt must be mentioned that this process that has occurred secondary to trauma is called a Charcot=s joint, and this will result in progressive destruction of this foot.  It is possible that amputation such as a Syme=s type may be necessary in the future.@  Because of the severity of the employee=s condition, Dr. Haaland also imposed restrictions, including no standing over fifteen minutes and no more than ten minutes of active walking at one time.  On January 28, 1998, Dr. Kitaoka recommended serial casting over a period of three months, followed by fitting with appropriate footwear.

 

IBP=s plant closed in May of 1998, and the employee applied for a job in the reconditioning department at Spomer Motors, Inc. [Spomer].^[4]  At the time of his application, his restrictions against standing and walking continued in place.  During the employment interview, the employee was not specifically asked about his physical condition or health, but he was asked whether he could Ahandle@ the jobs, and he replied that he could.  The employee was hired for the position, and, after about two weeks, he applied for and received a change of position to a light duty Alube@ mechanic position.  In this job, the employee=s duties included performing oil changes, changing tires, and doing other light mechanical tasks.  Both the reconditioning job and the lube mechanic job required the employee to be on his feet six to six and a half hours per day.

 

The employee apparently worked throughout 1998 and 1999 without any symptoms in his right foot.  Sometime during 2000, however, he began to have problems with the foot and periodically missed time from work as a result, although he never informed his employer as to his reasons.  On February 27, 2001, the employee fell and sustained a nonwork-related injury to his right elbow, and while he was being treated for his elbow injury his doctors noted an ulcerated plantar lesion on his right foot, which had apparently been present for three months.  Conservative treatment failed, and on August 3, 2001, Dr. William Bell performed a Syme=s-type amputation at the ankle.  Due to a staph infection, the employee underwent a second amputation surgery on September 14, 2001, six to seven inches below the right knee.

 

On September 18, 2001, the employee filed a claim petition seeking temporary total disability benefits continuing from August 3, 2001, as a result of his injury of January 30, 1997.  By this time, a compensation judge had determined that the employee=s January 30, 1997, right foot injury had substantially contributed to the development of a Charcot=s joint, and, by a decision filed July 9, 2001, that conclusion had been affirmed by this court.  In a letter to employee=s counsel on October 31, 2001, Dr. Bell related the employee=s amputation surgeries to the Charcot=s syndrome caused by the January 30, 1997, injury.

 

On March 4, 2002, IBP arranged for the employee to be examined by orthopedist Dr. Michael Davis.  Dr. Davis obtained a history from the employee, performed a physical examination, and reviewed the employee=s medical records.  He noted that the employee clearly had developed a Charcot arthropathy involving the right foot by May 1998.  However, the doctor noted that, prior to beginning work with Spomer, the employee had been getting along well and had had no infection.  Dr. Davis opined that the employee=s work at Spomer, Abeing on his feet for prolonged periods of time on cement surfaces, was instrumental in further breakdown of his foot with the onset of infection, osteomyelitis, and eventually two operative procedures culminating in a below knee amputation.@  He apportioned liability 75% to the 1997 injury and 25% to a subsequent Gillette-type aggravation at Spomer.

 

Following receipt of Dr. Davis= report, IBP agreed to pay benefits to the employee under a temporary order and filed a petition for contribution and/or reimbursement against Spomer.

 

On August 14, 2002, the employee was examined at the request of Spomer by orthopedist Dr. Peter Daly.  Dr. Daly obtained a history, performed an examination, and reviewed the employee=s medical records.  He concluded that the 1997 work injury was the triggering event of the employee=s Charcot arthropathy, which, once initiated, Agradually progressed as expected relative to the natural history of Charcot arthropathy.@  He did not believe that the work activities at Spomer substantially changed the natural course of the employee=s condition.  Dr. Daly explained that, had the work activities contributed to the employee=s foot breakdown, he would have expected the foot to break down within the first several months of employment.  He opined that the employee=s below-knee amputation and the progression of his Charcot arthropathy had resulted from the natural course of his condition and not due to any work performed at Spomer.

 

The employee=s claim petition and IBP=s petition for contribution came on for hearing before a compensation judge on October 29, 2002.  Among the issues presented to the judge were (1) whether the employee had sustained a Gillette injury to his right foot arising out of and in the course of his employment with Spomer, and (2) if the employee had in fact sustained a Gillette injury, whether the employee=s claim was barred by the supreme court=s holding in Jewison v. Frerichs Constr., 434 N.W.2d 259, 41 W.C.D. 542 (Minn. 1989).

 

At trial, witnesses included the employee and Marvin Spomer, president of Spomer Motors, Inc.  The employee acknowledged that, by the time he began working for Spomer, his doctors had assigned restrictions that included no standing or active walking for more than ten to fifteen minutes at a time.  He indicated that he understood that the reason for the precaution was that doing a lot of walking and standing Acould accelerate the condition.@  He acknowledged that the reconditioning job and the lube mechanic job both exceeded his restrictions but that he did not tell Spomer about his limitations.  Both the employee and Mr. Spomer testified that, during the employment interview, the employee was not specifically asked about his physical condition or health but that he was asked whether he could Ahandle@ the jobs and he replied that he could.

 

In a Findings and Order issued November 13, 2002, the compensation judge determined that the employee had sustained a Gillette-type personal injury to his right foot as a result of his work activities for Spomer between May 15, 1998, and July 19, 2001.  The judge accepted the expert opinions offered by Dr. Michael Davis, and he apportioned 25% of the liability to Spomer for all benefits paid after August 3, 2001.  As to Spomer=s Jewison defense, the judge concluded at Finding 10 as follows:

 

The evidence of record does not support a finding of fact that Mr. German[=s] claim for workers= compensation benefits should forfeit or be reduced because of his failure to advise his supervisor or Spomer Motors, Inc. of his pre-existing severe right foot disease condition prior to his employment and does not support a finding of fact that his claim should be barred on the grounds that he intentionally gave to his employer, Spomer Motors, Inc. misleading information so that they could not make a[n] intelligent decision on his employability as an automobile mechanic.

 

Spomer appeals.

 

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

 

1.  Gillette Injury

 

Spomer first contends that the judge=s finding of a Gillette injury is not supported by the substantial weight of the evidence.  It argues that Dr. Davis is the only physician who believes that the employee=s work at Spomer caused a Gillette injury and that all other doctors who treated the employee believed that amputation of the foot would have resulted from the natural progression of the employee=s Charcot syndrome.  Spomer argues that the employee=s work at Spomer, while admittedly outside his restrictions, did not substantially contribute to his ultimate need for surgery.  In fact, it argues, the need for amputation had been predicted before the employee began working for Spomer.  Spomer points out that Dr. Daly indicated that, had the Atrauma@ of standing and walking at Spomer contributed to the employee=s foot breakdown, Dr. Daly would have expected the foot to break down within the first several months of employment, whereas the employee=s ulcerated right foot plantar lesion was not discovered until February of 2001.  Spomer contends that Athe simple fact that the employee was working at Spomer Motors when he developed a foot ulcer does not create a Gillette injury.@  We are not persuaded.

 

We acknowledge that there is substantial evidence in the record to support Spomer=s position that the employee=s eventual amputations were the result of the natural progression of the employee=s Charcot syndrome.  However, the issue for review by this court is not whether the evidence would have supported alternative findings but whether substantial evidence supports the 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, at 60, 37 W.C.D. at 240.  In the present case, there is substantial evidence in the record to support the judge=s decision on this issue.

 

The compensation judge determined that the employee=s work activities at Spomer Aresulted in a daily wear and tear type, Gillette type, personal injury involving his right foot.@  He concluded that this injury Awas either an acceleration of, or a permanent aggravation of, his pre-existing right foot diseased condition.@  It is well settled that injuries are compensable if the employment is a substantial contributing factor not only in the condition but also in any aggravation or acceleration of a pre-existing condition.  Wallace v. Hanson Silo Co., 305 Minn. 395, 235 N.W.2d 363, 28 W.C.D. 79 (1975).  An employee need not prove that the employment was the sole cause of the disability for which benefits are sought, only that it was a substantial contributing cause of that disability.  Swanson v. Medtronics, Inc., 443 N.W.2d 534, 536, 42 W.C.D. 91, 94-95 (Minn. 1989).  Here, the compensation judge concluded that Dr. Davis= opinion Ahad more convincing force than any medical opinion that indicated that . . . the amputation of [the employee=s] right foot and lower leg was due to the natural progression of his underlying disease.@  Dr. Davis= opinion is consistent with the employee=s trial testimony relative to the time the employee spent on his feet and the fact that he had been cautioned that such activity Acould accelerate the condition.@  A judge=s choice between expert opinions is generally upheld unless the facts assumed by the expert in rendering his opinion are not supported by the evidence.  Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).  Because substantial evidence supports the facts assumed by Dr. Davis in rendering his opinion, we affirm the judge=s finding of a Gillette injury causally related to the employee=s work at Spomer Motors.

 

2.  Jewison Defense

 

At Finding 10, the compensation judge concluded that the employee was not barred from receiving benefits because the evidence of record did not support a finding of fact that the employee Aintentionally gave to his employer, Spomer Motors, Inc., misleading information so that they could not make a[n] intelligent decision on his employability as an automobile mechanic@  Spomer contends that, despite the employee=s knowledge that he could not physically perform the jobs being offered, the employee misrepresented his condition to Spomer by implying that he was physically capable of performing the essential functions in the reconditioning job as well as in the lube mechanic position.  This tacit withholding of information about his restrictions by the employee, Spomer contends, constituted a false representation of his physical condition in procuring employment and so barred the employee=s claim under the rule in the Jewison case.  We do not agree. 

 

In Jewison, the supreme court held that

 

a false representation as to physical condition or health made by an employee in procuring employment will preclude the awarding of workers= compensation benefits for an otherwise compensable injury if it is shown that:  (1) the employee knowingly and willfully made a false representation as to his physical condition; (2) the employer substantially and justifiably relied on the false representation in the hiring of the employee; and (3) a causal connection existed between the false representation and the injury.  The burden is on the employer to prove each of these elements. 

 

Jewison, 434 N.W.2d at 261, 41 W.C.D. at 545 (footnote omitted).^[5]

 

The court revisited its Jewison decision several years later in Huisenga v. Opus Corp., 494 N.W.2d 469, 47 W.C.D. 651 (Minn. 1992).  In that case, Mr. Huisenga made a false representation regarding his physical condition in response to questions posed by the employer requesting health and medical information unrelated to the tasks of the job and thus prohibited by the Minnesota Human Rights Act, Minn. Stat. ' 363.01, et seq. (1990) [MHRA].  The court held that, A[w]hen making inquiries of job applicants or employees, employers may do so only in methods which comply with the provisions of the MHRA.@  Huisenga, 494 N.W.2d at 474, 47 W.C.D. at 657.  If an employer strays from the Amandates and prohibitions@ of the MHRA, it cannot rely upon the Jewison defense in subsequent workers= compensation proceedings.  Id.

 

Marvin Spomer testified at hearing that he was under the impression that, legally, he could not ask the employee whether the employee suffered from specific disabilities.  Consequently, he did not ask the employee at the time he was hired, or at any time thereafter, whether he had any physical restrictions.  According to both Mr. Spomer and the employee, generally what was asked of the employee during the interview process was ACan you handle the job?@^[6]  The employee acknowledged at hearing that, at the time he interviewed for the jobs at Spomer, he knew that he suffered from Charcot=s syndrome and that both the reconditioning job and lube mechanic job exceeded his restrictions.  He also acknowledged that he had not told Mr. Spomer about his restrictions and that, when asked whether he could do the jobs, he had said yes.  The record is not clear, however, as to how, at the time of the interviews, the employee interpreted the question ACan you do the job?@  At trial, the employee testified that, although the job duties physically exceeded his restrictions, he did in fact have the necessary automotive skills for the jobs.

 

Whether a misrepresentation is knowing and willful is a question of fact, not one of law.  As such, we must affirm unless, in considering the record as a whole, the result reached by the compensation judge is clearly erroneous and without substantial support.  Minn. Stat. ' 176.421, subd. 1(3).  Here, the record is clear that Spomer made no specific inquiry regarding the employee=s physical condition or health.  The question asked of the employee was, ACan you do the job?@  This particular question is open to interpretation, and the employee did not testify that he viewed this question as an inquiry into whether he could physically do the job.  The employee made no direct representations at all regarding his physical condition.  Because Spomer made no clear inquiry pertaining specifically to the employee=s physical condition or health, it cannot now argue that it substantially and justifiably relied on any representation made by the employee.  The representation made by the employee was that he was able to do the jobs, and, in fact, he did perform the jobs in question for almost three years before being treated for an ulcer on the plantar aspect of his foot.  His response to Spomer=s question was not false as to his ability to perform the jobs.

 

The requirements of the Jewison defense are very specific, and we are not inclined to expand the defense to include a circumstance where the employee is not asked about specifically physical limitations as they relate to the essential functions of the job.  Given the testimony of the employee and that of Mr. Spomer, the compensation judge could reasonably have concluded that the employee did not knowingly and willfully misrepresent his physical condition in procuring the employment within the meaning of the rule in Jewison.  Accordingly, we affirm the judge=s determination that the employee=s claims are not barred by the Jewison defense.