DAVID A. KAISERSHOT, Employee, v. EARTHWORKS EXCAVATING and HERITAGE MUT. GROUP, Employer-Insurer/Appellants, and MN DEP=T OF ECON. SEC. and MINN. COMPREHENSIVE HEALTH ASSOC., Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

JULY 23, 2003

 

HEADNOTES

 

ARISING OUT OF & IN THE COURSE OF.  Where, at the time of his Saturday injury, the employee was evidently performing a task beneficial to the employer, agreed to by the employer, and on the employer=s premises, the compensation judge=s conclusion that the employee=s injury was one arising out of and in the course of employment was not clearly erroneous and unsupported by substantial evidence, notwithstanding the facts that the employee normally worked only Monday through Friday and on the day of his injury was being compensated for his work only by permission to use company machinery for personal reasons.

 

PRACTICE & PROCEDURE - ADMISSION OF EVIDENCE; EVIDENCE - CREDIBILITY.  Where the employer and insurer had disclosed the employer=s owner as a probable witness but had elected at hearing not to offer his testimony, where the employee had then, having already rested his case, requested and been allowed to call that witness as part of his case in chief, where the employer and insurer, after the employee=s direct examination of that witness, were given ample opportunity to cross-examine the witness, and where that witness=s testimony was in the end not material to the issues on appeal, notwithstanding the employer and insurer=s contention that the judge=s express crediting of the employee=s testimony over that of the witness distracted the judge from more critical legal analysis, the compensation judge did not err in permitting the employee to call the employer=s owner as a witness even after the employee had initially rested his case.

 

EVIDENCE - EXPERT MEDICAL OPINION.  Where the employee=s doctor had treated the employee for severe joint problems related to his hemophilia for several years and was sufficiently familiar with the mechanics of the employee=s work injury to form an adequate basis for his opinions, where those opinions were based on adequate factual history from the employee, from a review of medical records, and from physical examinations, the compensation judge=s decision to rely on the opinions of the employee=s doctor was upheld.

 

PRACTICE & PROCEDURE - NOTICE OF ISSUES.  Where the compensation judge made a finding as to the reason for the employee=s termination, where that issue was neither before the judge for determination nor in any way relevant to issues before the judge, except to the extent that the termination was either voluntary or involuntary, and where the employee did not dispute the employer and insurer=s request that the finding be modified, the compensation judge=s finding as to the reason for the employee=s termination was modified as requested, to reflect only that the termination was involuntary.

 

Affirmed as modified.

 

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

Compensation Judge:  Bradley J. Behr.

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

The employer and insurer appeal from the compensation judge=s determination that the employee=s injury arose out of and in the course of his employment, from the scope of the judge=s findings, and from the judge=s choice of medical experts.  We affirm as modified.

 

BACKGROUND

 

David Kaisershot [the employee] was employed as a dump truck driver by Earthworks Excavating [the employer] from May 2000 until September 30, 2000, generally working a Monday-through-Friday schedule.  In addition to the dump truck driven by the employee, the employer owned other heavy equipment, including a bobcat, a packer, and a bulldozer.  Although his primary job duties with the employer were as a dump truck driver, on two or three occasions the employee had also transported such excavating equipment.

 

On Friday, September 29, 2000, the employee finished his work for the week when he returned the dump truck to the employer=s equipment yard at the home of the company=s owner, Todd Dooley.  Later that evening, the employee contacted Mr. Dooley to ask whether he could borrow the company bobcat for his personal use over the weekend.  Aware that the bobcat and other equipment remained at a job site in Lino Lakes, the employee proposed to the employer that, in return for use of the bobcat, he would be willing to pick up the bobcat at the job site and also transport the packer back to the employer=s equipment yard.  The employee had used the employer=s bobcat on a prior occasion and had paid a $75.00 rental fee for that use.  By offering to transport the packer, the employee hoped to avoid the $75.00 charge.  Mr. Dooley agreed to the employee=s proposal, requesting that the employee also transport a bulldozer back from the job site.  The employee agreed.  The employee was not scheduled to work on September 30, 2000, and, except to the extent that he would not be charged a rental fee for use of the bobcat, he did not expect to be compensated for transporting the employer=s equipment.

 

On Saturday, September 30, 2000, the employee drove from his home to the employer=s equipment yard to pick up the semi-tractor and low-boy trailer necessary to transport the equipment.  He then drove to the job site, where he loaded and chained down only the bobcat and the packer, as transporting the bulldozer would require a second trip.  The employee returned to the employer=s equipment yard and began to offload the packer.  While unchaining the packer, he slipped off the trailer and hyperextended his right elbow.  The employee suffers from hemophilia, and, as a result, he experiences severe problems with injuries that cause bleeding into the joints.  His injury on September 30, 2000, resulted in intra-articular bleeding to his right elbow joint, which in turn caused pain and joint stiffness.  The employee=s employment with the employer was terminated by the employer immediately subsequent to his injury.

 

On November 6, 2000, the employee filed a claim petition, seeking payment of medical expenses and temporary total disability benefits.^[1]  The employer and insurer denied liability for the employee=s injury.  The employee=s claims ultimately came on for hearing before a compensation judge at the Office of Administrative Hearings on October 2, 2002.  The primary issue presented to the compensation judge was whether the employee=s alleged injury on September 30, 2000, arose out of and in the course of his employment with the employer.  Benefits issues and intervenors= entitlements were also at issue.  In a Findings and Order issued November 13, 2002, the judge found that the employee was injured while unloading the employer=s packer at the equipment yard and that, at the time he was injured, he was performing a job that directly benefitted the employer.  In his memorandum, the judge acknowledged that the employee=s case was somewhat weaker than it would have been had the employee=s injury occurred during his normal weekly work hours.  However, he explained that he found it significant that the employee=s injury had occurred on the employer=s premises while the employee was performing a job that the employer had not only directly benefited by but specifically consented to.  Based substantially on these facts, the judge concluded that the employee=s injury had arisen out of and in the course of the employee=s employment.  The employer and insurer appeal.

 

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.  Arising Out of and In the Course of Employment

 

To be compensable under the workers= compensation statute, an injury must arise Aout of and in the course of employment@ while an employee is Aengaged in, on, or about the premises where the employee=s services require the employee=s presence as a part of such service at the time of the injury and during the hours of such service.@  Minn. Stat. ' 176.011, subd. 16.  The phrase Ain the course of@ refers to the time, place and circumstances of the injury; Aarising out of@ connotes a causal connection between the injury and the employment.  Gibberd v. Control Data Corp., 424 N.W.2d 776, 780, 40  W.C.D. 1040, 1047 (Minn. 1988).  The requisite causal connection Aexists if the employment, by reason of its nature, obligations, or incidents, may reasonably be found to be the source of the injury-producing hazard.@  Nelson v. City of St. Paul, 249 Minn. 53, 55, 81 N.W.2d 272, 275, 19 W.C.D. 120, 123 (1957).  Whether an injury arose out of and in the course of employment is generally a fact question for the compensation judge, Franze v. National Delivery Serv., 49 W.C.D. 148, 155 (W.C.C.A. 1993), summarily aff=d, 505 N.W.2d 620 (Minn. 1993), and the burden of proof is on the employee/claimant.  Minn. Stat. ' 176.021, subd. 1.

 

The employer and insurer argue that the compensation judge erred as a matter of law in determining that the threshold requirements of Aarising out of@ and Ain the course of@ employment were met in this case.  The essential premise for their argument is that the circumstances giving rise to the employee=s injury were the result of the employee=s own initiated plan, uncontrolled by the employer, to obtain the personal use of company equipment at his home.  They contend that, while the employee=s injury may have occurred on the employer=s premises, the mere fact that the employer Aacquiesced@ in the employee=s proposal to obtain use of the company bobcat does not satisfy the requirements for compensability.  The employer and insurer emphasize that the employee initiated the plan and was not scheduled to work on the date of the injury and that the employer did not order or direct him to perform any work on that date.  The employee=s injury did not occur during his normal hours of service for the employer, they argue, but on his own clock, serving his own personal work plan.  The fact that some secondary activity might have served the employer=s interests, they contend, does not outweigh the primarily personal reason for and circumstances of his activities at the time of his injury, so as to render that injury a compensable work injury.  We are not persuaded.

 

Relying on Scheppman v. T & E Serv., Inc., 287 Minn. 183, 177 N.W.2d 306, 25 W.C.D. 138 (1970), the employer and insurer contend that the judge erred when he concluded that the employer=s Aacquiescence@ in the employee=s plan, combined with the fact that the injury occurred on the employer=s premises, somehow satisfied the Atime@ requirement of the Ain the course of@ test.  They contend that an employer=s accommodation to an employee, even to the extent of using the employer=s premises and equipment, does not change the fact that the injury must occur Awhen the employee is on the clock for the employer, not when he is on the clock serving his  own personal work plan.@  In Scheppman, the employee had been injured by carbon monoxide poisoning while working on his own car, with the employer=s permission, in the service station at which he was employed.  Mr. Scheppman had begun his work on his car an hour before his regular work hours ended, but his injury occurred at least an hour after the end of his regular work hours.  The supreme court reversed an award of benefits to Scheppman on grounds that his injury did not occur during the hours of his service to the employer and so did not occur in the course of his employment.  The court stated:

 

As we view the facts and circumstances here, it makes no difference that permission to use the employer=s premises and tools to repair his car may be considered a part of Dennis= compensation.  This alone does not bring the injury within the scope of the Worker=s Compensation Act.  The injury still has to occur during the hours of his service for his employer, which in this case ended at 9 o=clock on the evening involved.  From then on, Dennis was working for himself.  He was doing so when his injury occurred.

 

Scheppman, 287 Minn. at 186, 177 N.W.2d at 308, 25 W.C.D. at 141.

 

We decline to view Scheppman as controlling of our analysis of this case.  As we have noted on many occasions, although the Aarising out of@ and Ain the course of@ requirements may express two different concepts, in practice these requirements are not independent but Aare elements of a >single test of work-connection.=@  United Fire & Casualty Co., 510 N.W.2d 241, 243 (Minn. Ct. App. 1994) (citing A. Larson, Workmen=s Compensation for Occupational Injuries & Death, ' 29.00 (1993)).  In this case, the judge acknowledged that the Ain the course of@ element of work-connection was somewhat weak.  Although this employee=s injury occurred on the employer=s premises, it did not occur during the employee=s normal hours of service.  Whether the judge viewed the employer=s Aacquiescence@ in the employee=s plan as essentially an agreement to expand the hours of service is not stated by the judge.

 

In Bohlin v. St. Louis Co., Nopeming Nursing Home, 61 W.C.D. 69 (W.C.C.A. 2000), summarily aff=d (Minn. Jan. 16, 2001), this court adopted Larson=s balancing test.^[2]  In any given case, a certain minimum level of work connection must be proven.  Where the Acourse@ test yields a weak result but the Aarising@ test yields a strong one, the required quantum of work connection may be met.  Similarly, where the Acourse@ test is strong but the Aarising@ test is weak, the required work connection may also be met.  Where both tests yield weak results, however, insufficient connection to the employment may exist.  As this court stated in Bohlin, A[w]hen a line is drawn, there are always cases very close to each side of the line.  No absolute rule can be derived, since there are too many factual variables that could affect the result.@  Bohlin, 61 W.C.D. at 81.

 

In the present case, despite protestations to the contrary by the employer and insurer, we believe that the judge reasonably viewed the evidence as supporting the conclusion that, at the time of his injury, the employee was performing a task agreed to by the employer.  Crediting the employee=s testimony, that the injury occurred while he was unloading the employer=s packer at the employer=s equipment yard, the judge concluded that, at the time of the employee=s injury, the employee was performing a job that not only benefited the employer but that the employer had specifically consented to.  The judge acknowledged that the employee did not normally work on weekends and that it was the employee=s desire to use the bobcat that led to his proposal to transport the excavating equipment over the weekend.  However, the judge also noted that the employer specifically approved the employee=s proposal and that the employer=s approval and counter-proposal, that the employee also move the bulldozer, were similarly motivated by a desire to obtain a benefit directly related to the business of Earthworks Excavating.  In the end, the ultimate determination as to whether the employee was going to engage in any activity with company equipment on that day rested with the employer.  The judge pointed out that it was necessary that the equipment be moved from the Lino Lakes job site and that, had the employee not done the job on Saturday, Aeither Mr. Dooley or another worker would presumably have done it during the normal work hours the following week.@

 

It is evident from the judge=s decision that he carefully considered the arising-out-of and in-the-course-of tests for work connection and concluded that the requisite connection existed.  Applying the balancing test to this case, we conclude that the evidence is sufficient to support the compensation judge=s decision in this matter, and, accordingly, it is affirmed.  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235 (Minn. 1984).

 

2.  Procedural Error

 

The employer and insurer contend that the compensation judge erred in allowing the employee to reopen his case in chief and to call Mr. Dooley as a witness, having earlier rested his case and having failed to disclose Mr. Dooley as a witness prior to hearing.  They contend that the judge=s admission of the testimony was Aprejudicial to rights of the Employer and Insurer to present a defense that focused on the real issueBthe proper application of the law to the facts as disclosed in Kaisershot=s testimony, not a contest of which witness the judge preferred.@  In his memorandum, at the end of his AArising Out Of@ analysis, the judge had stated, AMr. Dooley=s suggestion that the employee was not injured during the unloading process and that, in fact, he performed the landscaping at his home on 9/30/00 was unpersuasive.  The employee was the more credible witness.  His injury is compensable.@  The employer and insurer argue that this statement by the judge underscores the prejudice suffered by the employer and insurer as a result of the judge=s admission of Mr. Dooley=s testimony.  We are not persuaded.

 

To begin with, while a judge=s Ainvestigation or hearing shall be conducted in a manner to ascertain the substantial rights of the parties,@ a judge, as the employer and insurer appear to concede, Ais bound neither by the common law or statutory rules of evidence nor by technical or formal rules of pleading or procedure.@  Minn. Stat. ' 176.411.  In this case, the employer and insurer were certainly not unfamiliar with either the witness at issue or his potential testimony, in that they themselves had disclosed and presumably prepared Mr. Dooley as a likely witness prior to hearing, a disclosure evidently relied on by the employee.  Moreover, the employer and insurer were clearly given ample opportunity to cross examine Mr. Dooley, to rectify any prejudicial implications that they might have perceived.  Concluding that the judge did not apparently rely on the contested testimony in any material way, and concluding also that the employee=s own uncontested testimony was clearly supportive of the decision reached by the judge, we cannot conclude that the judge was in any dispositive way distracted by credibility concerns from a proper analysis of legal issues, as the employer and insurer have argued.  Nor, we conclude, does the Ajuxtaposition@ of language cited by the employer and insurer from the judge=s memorandum support the employer and insurer=s position in any positive way, in that the clear context of that credibility assessment was limited to the issue of the place of the employee=s injury, an issue essentially uncontested on appeal.  We conclude that the employer and insurer suffered no prejudice by the compensation judge=s admission of the testimony of Mr. Dooley, nor did the judge exceed his discretion in admitting that testimony.

 

Having concluded that the evidence is sufficient to reasonably support the judge=s decision, and having concluded also that the judge=s admission of Mr. Dooley=s testimony did not result in any prejudice toward the employer and insurer with regard to that evidence, we affirm the compensation judge=s determination that the employee=s injury of September 30, 2000, arose out of an in the course of the employee=s employment.  See Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d at 59, 37 W.C.D. at 239 (Minn. 1984).

 

3.  Choice of Experts

 

The employer and insurer alternatively argue that the employee=s restrictions and disability and any need for medical treatment related to the September 30, 2000, injury had resolved by November 5, 2000, in accordance with the medical opinion of Dr. Paul Wicklund.  They contend that the compensation judge erred in relying upon the opinion of Dr. Daniel Buss, the employee=s treating physician, in that Dr. Buss was not given a complete and accurate description of the claimed mechanics of the employee=s injury.  We are not persuaded.

 

Dr. Buss has treated the employee for severe joint problems related to his hemophilia since approximately 1995.  The doctor was sufficiently familiar with the mechanics of the employee=s injury on September 30, 2000, to form an adequate basis for his opinion.  Dr. Buss=s opinions are based on adequate factual history from the employee, a review of medical records, and physical examinations.  The compensation judge=s choice was to rely upon the opinions of Dr. Buss, and a compensation judge=s choice between experts is to be upheld unless the expert=s opinion is based on facts not supported by the evidence.  Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).  Concluding that Dr. Buss=s opinions are adequately founded, we uphold the compensation judge=s decision to rely on them.

 

4.  Finding on Termination

 

At Finding 10, the compensation judge determined that the employee was terminated by the employer on approximately October 2, 2002, for reasons expressed by Mr. Dooley in testimony.  The employer and insurer contend that there were no issues before the judge that required a finding as to the reason for the employee=s termination.  If such a finding were necessary, they argue, it would only be to the extent that termination of employment was found to be voluntary or involuntary.  The employer and insurer contend that the judge erred in issuing a finding as to why the employee was terminated from employment by the employer.  They suggest that Finding 10 should be modified to read:

 

The employee=s discharge from employment was the result of an involuntary termination.

 

At oral argument before this court, the employee did not dispute the employer and insurer=s assertions in this regard, essentially agreeing to the proposed modification.  Therefore, concluding that the issue of the reason for the employee=s termination was arguably not before the judge, and because the requested modification is not disputed, we hereby modify Finding 10 as requested.