ROBERT LAMOREAUX, Employee/Appellant, v. HONEYWELL, INC., and SELF-INSURED/SEDGWICK CLAIMS MANAGEMENT SERVS., Employer/Cross-Appellant, and BLUE CROSS BLUE SHIELD OF MINNESOTA, and ASSOCIATED ANESTHESIOLOGISTS/PHOENIX MANAGEMENT SERVS., INC., Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

APRIL 30, 2003

 

HEADNOTES

 

CAUSATION.  Substantial evidence, including expert medical testimony, supports the compensation judge=s finding that the employee sustained a work-related injury to his left knee when he slipped and fell at work.

 

PRACTICE & PROCEDURE; INTERVENORS.  Where the employee had withdrawn his claim for medical expenses relating to any of the potential intervenors and only requested reimbursement for expenses related to parties who had intervened, the compensation judge erred by extinguishing the rights of potential intervenors who had not filed motions to intervene.

 

Affirmed in part and vacated in part.

 

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

Compensation Judge: Penny Johnson

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The employee appeals the compensation judge=s decision to extinguish the interests of potential intervenors who had not filed motions to intervene.  The self-insured employer cross-appeals the compensation judge=s finding that the employee sustained a work-related injury to his left knee.  We affirm in part and vacate in part.

 

BACKGROUND

 

Robert L. LaMoreaux, the employee, has worked for Honeywell, Inc., the self-insured employer, for 26 years.  The employee claims that he slipped and fell while pushing a 55 gallon drum on a barrel cart, injuring his left knee, on February 9, 2001.  The employee informed a co-worker, Mr. Stephen Mack, that he had fallen and hurt his knee.  Another co-worker, Mr. Ivan Davis, testified that he saw the employee on the ground, asked if he was hurt, and told him to see the nurse.  The employee consulted the company nurse who provided him with ice and ibuprofen, and then  finished working his shift.  The employee returned to the nurse on February 12, 2001, reporting that his knee was still sore.

On February 20, 2001, the employee was examined by Dr. Vijay Eyunni at Minnesota Occupational Health.  Dr. Eyunni noted that the employee=s left knee was swollen, but released the employee to his regular job with no restrictions.  Dr. Eyunni referred the employee for an MRI scan of his left knee, which was conducted on March 12 and showed multiple changes of the left knee, including fraying of the meniscus, chondromalacia, and multiple loose bodies. Dr. Eyunni also referred the employee to Dr. Larry Stern, orthopedic surgeon, who examined the employee on March 14, 2001.  The employee advised Dr. Stern of his injury on February 9, 2001, and also informed Dr. Stern that he had undergone a complete lateral meniscectomy on his left knee in 1978 and had occasional left knee pain, and that he had not treated for his left knee since that time.  The employee=s medical records at the employer=s medical department indicate that he reported bumping his left knee in 1979, a twisting injury in 1989 where he was taken off work for one week, and a fall injuring his left knee in 1993.  Additional medical reports in the record document periodic treatment to the employee=s left knee between 1974-1993.  The employee also reported left knee pain to a clinic physician in 2000 and in 2001.

 

Dr. Stern opined that the employee=s left knee injury was work-related.  He treated the employee with a steroid injection, which initially reduced his left knee symptoms, and assigned work restrictions.  By April 2, 2001, the employee reported to Dr. Eyunni that his knee had locked up and he noted severe pain with swelling.  Dr. Eyunni prescribed pain medication and restricted the employee from work for two days as he was unable to do any weight bearing.  On April 4, 2001, the employee consulted Dr. Stern, who recommended arthroscopic surgery to reduce the effusion in the knee.  On April 6, 2001, Dr. Stern performed a left knee arthroscopy medial and lateral meniscectomy with removal of a large loose body and hemostasis using electrocautery.  Thereafter he restricted the employee from work until April 30, 2001. 

 

On  May 1, 2001, the employee filed a claim petition for temporary total disability benefits from April 3, 2001, through April 30, 2001, and medical expenses.  The employee sent intervention notices to the employee=s medical providers, including Center for Diagnostic Imaging, Minnesota Occupational Health, Summit Landmark Orthopedics, Northland Nurse Anesthesia, and HealthEast St. Joseph=s Hospital, none of whom filed motions to intervene.  Only Blue Cross Blue Shield of Minnesota and Associated Anesthesiologists/Phoenix Management Systems, Inc., filed motions to intervene. 

 

A hearing was held on July 11, 2002.  During the hearing, the employee withdrew any claim for payment of medical expenses to the providers who had not intervened.  The compensation judge found that the employee had sustained a work-related injury to his left knee on February 9, 2001, and awarded temporary total disability benefits from April 3, 2001, through April 30, 2001, and medical expenses to the medical insurer and provider who had filed motions to intervene, Blue Cross Blue Shield of Minnesota and Associated Anesthesiologists/Phoenix Management Systems, Inc.  The compensation judge also extinguished the interests, through the date of hearing, of those potential intervenors who did not file motions to intervene.  She found that the parties were materially prejudiced by the failure of the noticed potential intervenors to intervene in the  proceeding.

The employee appeals the compensation judge=s decision to extinguish the interests of potential intervenors who had not filed motions to intervene.  The employer cross-appeals the compensation judge=s finding that the employee sustained a work-related injury to his left knee.

 

STANDARD OF REVIEW

 

On appeal, the Workers' Compensation Court of Appeals must determine whether "the 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.  Substantial evidence supports the findings if, in the context of the entire record, "they 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, findings of fact should not be disturbed, even though the reviewing court might disagree with them, "unless 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.@  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).  A decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which the Workers' Compensation Court of Appeals may consider de novo."  Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993), summarily aff=d (Minn. June 3, 1993).

 

DECISION

 

Causation

 

The employer cross-appeals the compensation judge=s finding that the employee sustained a work-related injury to his left knee.  The employer argues that the compensation judge=s finding that the employee=s testimony was Acredible and consistent with the testimony of the other witnesses@ was erroneous, as the employee changed his description of how he injured his knee and was contradicted by his co-workers= testimony.

 

The employee testified that he slipped and fell while pushing a 55 gallon drum on a barrel cart, injuring his left knee.  A co-worker, Mr. Mack, testified that the employee told him that he had fallen and hurt his knee.  Another co-worker, Mr. Davis, testified that he saw the employee on the ground, asked if he was hurt, and told him to see the nurse.  The employee testified that he did not recall his conversation with Mr. Davis.  However, the employee=s lack of recall and that he did not list Mr. Davis as a witness does not render the employee=s testimony contradictory to Mr. Davis= testimony.  In addition, that the employee initially testified that he was standing on the metal dock plate when he slipped, then later said he was on cement and slipped when he came to the metal dock plate, does not change the essential nature of the employee=s testimony.  Further, assessment of the credibility of a witness is the unique function of the trier of fact.  Brennan v. Joseph G. Brennan, M.D., P.A., 425 N.W.2d 837, 839-40, 41 W.C.D. 79, 82 (Minn. 1988).  In addition, a factfinder generally "may accept all or only a part of any witness' testimony."  Proffit v. Minnesota Harvest Apple Orchard, 48 W.C.D. 215, 219-20 (W.C.C.A. 1992) (quoting City of Minnetonka v. Carlson, 298 N.W.2d 763, 767 (Minn. 1980)), summarily aff'd (Minn. Mar. 3, 1993).  The compensation judge was not clearly erroneous in finding the employee=s testimony to be credible.

 

The employer also argues that the compensation judge erred by relying on Dr. Stern=s opinion that the employee=s left knee injury was work-related since the employee did not inform Dr. Stern of all his earlier left knee injuries and incidents involving his left knee.  The compensation judge was aware of these incidents and injuries and found that Dr. Stern=s opinion was still credible on the issue of causation.   The compensation judge noted that Dr. Stern was generally aware of the employee=s preexisting knee problems, including prior surgery, that the other incidents of which Dr. Stern may not have been aware were minor knee injuries at work, that the last one occurred eight years before the 2001 injury, and that Dr. Stern was Awell aware that the employee has preexisting arthritis of the knee.@  Taking all of this into consideration, the compensation judge accepted Dr. Stern=s opinion on causation.  Questions of medical causation fall within the province of the compensation judge.  Felton v. Anton Chevrolet, 513 N.W.2d 457, 50 W.C.D. 181 (Minn. 1994).

 

Further, the compensation judge did not apply an incorrect burden of proof, as alleged by the employer and insurer, by stating that there was no other medical opinion regarding causation.  The compensation judge reasonably concluded that the employee met his burden of proof through testimony and expert medical opinion, including that of Dr. Stern. 

 

The compensation judge adequately explained the basis for her finding that the employee sustained a work injury to his left knee in a slip and fall.  She noted that a co-worker, Mr. Davis, saw the employee on the ground, that the employee told another co-worker, Mr. Mack, that he had fallen, and that the employee was treated by the company nurse, who observed swelling of the left knee.  The compensation judge acknowledged that the employee was able to continue working his shift and was videotaped walking fairly normally after the injury, but specifically concluded that this was not inconsistent the employee=s testimony.  The compensation judge noted that none of the witnesses had stated that the employee had limped at any time after the injury.  It is not the role of this court to evaluate the credibility and probative value of witness testimony and to choose different inferences from the evidence than the compensation judge.  Krotzer v. Browning-Ferris/Woodlake Sanitation Serv., 459 N.W.2d 509, 513, 43 W.C.D. 254, 260-61 (Minn. 1990). Substantial evidence supports the compensation judge=s finding that the employee=s left knee injury was work-related, and we affirm. 

 

Intervenors

 

Although the employee=s attorney provided notice of their potential intervention rights, under Minn. R. 1415.1100, to Center for Diagnostic Imaging, Minnesota Occupational Health, Summit Landmark Orthopedics, Northland Nurse Anesthesia, and HealthEast St. Joseph=s Hospital, none filed motions to intervene.  At the time of the hearing, the employee thought that all of his medical bills had been paid by Blue Cross Blue Shield; it was unclear at hearing whether any medical bills remained unpaid.  The employee therefore specifically limited his claims for medical expenses to those incurred with the two named intervenors, Blue Cross Blue Shield of Minnesota and Associated Anesthesiologists/Phoenix Management Systems, Inc, and withdrew his claims for medical expenses relating to the potential intervenors.  The compensation judge determined that the rights of potential intervenors who had not filed motions to intervene were extinguished through the date of the hearing, and the employee appealed.

 

All attorneys involved in a workers' compensation proceeding must affirmatively inquire of their clients as to possible intervenors and then serve on any potential intervenor a notice of its rights under the law.  Minn. R. 1415.1100.  A potential intervenor is required to respond to the notice by serving and filing a motion to intervene within sixty days.  Minn. R. 1415.1200, subp. 1.  An untimely motion to intervene or any other failure to comply with the procedures "will result in a denial of the claim for reimbursement unless the compensation judge determines that the noncompliance is merely technical."  Minn. R. 1415.1200, subps. 1.A., 6.  Failure to comply with the statutory intervention provisions, however, shall not result in a denial of the claim for reimbursement unless the compensation judge, or commissioner, Adetermines that the noncompliance has materially prejudiced the interests of the other parties."  Minn. Stat. ' 176.361, subd. 7 (2001).^[1]

 

The compensation judge found that the Afailure of the noticed health care providers to submit updated medical bills and information in this proceeding concerning the nature and extent of any services provided has materially prejudiced the other parties in the presentation and defense of the employee=s claim@ and extinguished their interests up to the date of the hearing.  The employer did not argue at hearing that the failure of the potential intervenors to intervene materially prejudiced the employer; the employer=s arguments at hearing were limited to the two named intervenors.  The compensation judge did not explain how the other parties were materially prejudiced.   Although the rights of the potential intervenors were placed into issue at the beginning of the hearing, by the end of the hearing the employee=s attorney advised counsel and the compensation judge that the employee was only seeking reimbursement to the two intervening parties, and therefore no claims for any other medical expenses were at issue.  As a result, we conclude that the compensation judge erred by addressing an issue not presented to her.  See Minn. Stat. ' 176.371 (A[a]ll questions of fact and law submitted to a compensation judge at hearing shall be disposed of . . . .@).  We therefore vacate the compensation judge=s decision to extinguish the rights of potential intervenors who had not filed motions to intervene.