MARCIAL MORENO, Employee/Appellant, v. NORTHWEST SURFACING CO. and CNA INS. CO./VALLEY FORGE INS. CO., Employer-Insurer, and OPERATING ENG=RS LOCAL 49 H&D FUND and MN DEP=T OF ECON. SEC., Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

SEPTEMBER 29, 2003

 

HEADNOTES

 

EVIDENCE - CREDIBILITY.  Where there was no evidence in the employee=s initial medical records, in his contemporaneous employment records, or in the testimony of his co-worker to corroborate the employee=s claim of a specific work injury on or about the date alleged, and where there was definite evidence in the employee=s time cards that he was not working at the location of the alleged injury on or about the date originally alleged, the compensation judge=s conclusion that the employee=s claim of a specific work injury was not credible was not clearly erroneous and unsupported by substantial evidence.

 

NOTICE OF INJURY - TRIVIAL INJURY RULE.    The purpose of the trivial injury rule is to toll the statutory period during which notice of injury must be issued.  Where the court had affirmed the compensation judge=s conclusion that the employee=s claim of a specific work injury was not credible, any issue as to statutory notice of such an injury was moot, rendering also moot any issue as to the propriety of the judge=s application of the trivial injury rule.

 

PRACTICE & PROCEDURE.  Reversal or remand for a new trial was unnecessary where none of various alleged procedural irregularities in the hearing before the compensation judge was so prejudicial, either individually or collectively, as to have altered the outcome of the hearing.

 

Affirmed.

 

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

Compensation Judge:  James R. Otto

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

The employee appeals from the compensation judge's denial of compensation for a specific injury in June or July of 1998.  We affirm.

 

BACKGROUND

 

On August 29, 1998, Marcial Moreno was treated at the Mahnomen Health Center for pain in his left leg that he had reportedly been experiencing for A2 wks, [without] injury@ and with ANo [history] of trauma.@  He was seen there again about two weeks later, on September 11, 1998, when medications were prescribed and record was made that he would be making an appointment for himself with a neurologist.  On October 6, 1998, the employee saw neurologist Dr. Steven Julius at the Dakota Clinic in Fargo, North Dakota, on referral from the Mahnomen clinic, regarding pain that he had

reportedly been experiencing for Aapproximately two months.@  Dr. Julius found the employee to be neurologically normal, his pain to be Aof undetermined etiology,@ and his Ahistory . . . suggestive of possible vascular claudication.@  He referred the employee for an EMG with nerve conduction studies, which were conducted on October 16, 1998.  In the history section of her report on that study, Dr. Bonnie Dean recounted that the employee Afell three years ago injuring his back@ and A[f]or the past two months . . . has had left leg pain.@  On October 26, 1998, the employee underwent a lumbar MRI scan, which was read to reveal intervertebral disc herniation at L5-S1, and on November 3, 1998, the employee was examined by neurosurgeon Dr. Mickey Syrquin, who recommended physical therapy and consideration of discectomy surgery.  Dakota Clinic medical records for that date, November 3, 1998, contain a form titled ADakota Clinic Work Injury Report,@ which documents initial treatment for a work injury on that date.  Also contained in the those records is a hand-written note indicating that the employee had been referred for a neurosurgical examination by Dr. Julius, near which note is written ADOI 7/27/98 WC MN.@  The employee did not thereafter return to work for the employer.

 

On November 4, 1998, the employee personally completed a First Report of Injury, on which he indicated that he had sustained a work injury, in the nature of a Apinched nerve in back,@ while ALifting a Screen@ in the course of his work for the employer as a ALoader Operator@ at AThe Vergas Pit@AAround July 15^th.@  On that same report, the employee identified Richard Kutz, a co-employee, as a witness of the injury and indicated that the employer was first notified of the injury on the date of the report, November 4, 1998.

 

On November 30, 1998, Dr. Syrquin indicated that the employee wanted to proceed with discectomy surgery, and on December 8, 1998, the employee was seen in consultation by neurosurgeon Dr. John Hutchison at the Dakota Clinic.  In his report, Dr. Hutchison recounts a history of the employee being Ainjured July 27, 1998,@ on which Adate he was lifting some very heavy screens and he felt pain in the back and down the left leg,@ having Anot had any of this sort of symptomatology before the injury July 27, 1998.@  In a letter to the employee on December 17, 1998, Dr. Hutchison related the employee=s low back condition to the employee=s  Ainjury July 27^th, 1998,@ stating, AI do believe that this is a work related injury.@  On January 11, 1999, Dr. Hutchison recommended proceeding with fusion surgery, and on January 26, 1999, neurosurgeon Dr. James Wagner concurred in that recommendation.  On January 29, 1999, the employee filed a Claim Petition, alleging entitlement to temporary total disability benefits continuing from November 2, 1998, consequent to a work injury on July 27, 1998.  On the date of the alleged injury, July 27, 1998, the employee had been forty-seven years old and had been earning a weekly wage of $1,337.10.

 

On April 24, 1999, the employee was examined by Dr. John Dowdle.  Among Dr. Dowdle=s conclusions was the following:

 

Based on a review of the medical records, there does not appear to be a specific injury that occurred on or about July 27, 1998. [The employee] does report he was lifting a screen while working for Northwest Surfacing.  However, the medical records do not support that.  He was seen two or three times by medical providers with the history of gradual onset of pain without a specific history of an injury.

 

Dr. Dowdle concluded also that, if the employee=s work activities did, after all, cause him any difficulty on July 27, 1998, it was a temporary aggravation of a pre-existing degenerative disc condition, and any loss of work after November 2, 1998, any medical care or treatment since that date, and any fusion now being recommended would be consequent to that underlying condition, not to the aggravation.

 

On May 12, 1999, the employee underwent the recommended anterior lumbar discectomy and fusion at the L5-S1 level of his low back, performed by Drs. Hutchison and Wagner.  On June 29, 1999, Dr. Hutchison took issue with Dr. Dowdle=s opinion, reiterating his opinion that the employee was subject to an underlying degenerative disc condition at L5-S1 and to a lesser degree at L4-5, which was then aggravated by a work injury sustained July 27, 1998.

 

On December 21, 1999, the employee filed an Amended Claim Petition, modifying the alleged date of injury from July 27, 1998, to July 15, 1998, and adding a claim for compensation for a 12% whole-body permanent impairment.  The matter came on for hearing on April 13, 2000, before Compensation Judge Rolf G. Hagen.  At hearing, the employee=s attorney acknowledged that there had been some confusion over the date of the alleged injury, stating that the injury Awas somewhat in the nature of a trivial injury, from the perception of the employee.@  The employee=s attorney nevertheless stated to the judge, however, AWe are sure it=s on July 27^th.  But for some reason, this other date snuck into some of the records and started to be used back and forth.  We would stipulate that the date is July 27^th,@ to which the employer and insurer=s attorney replied, AAnd that=s fine with us, Judge.@

 

At the hearing before Judge Hagen, the employee testified in part that, on the date alleged, a screen on a rock crusher had become damaged and in need of changing and that, when he and a coworker had finally gotten the screen loose, Athat=s when I felt that pain go to my leg.@  He testified that he had at that time told his co-employee, Richard Kutz,  AKooter, I don=t know what happened, but . . . I just got this pain in my leg.@  He testified also that Aafter talking for awhile, [Mr. Kutz] started saying maybe it was just a pinched nerve.  And that=s what I thought myself, too.  But my foot was just kind of tingling.  And I still had the sharp pain.@  The employee testified that the employer=s owner, Mark Thorson, subsequently came onto the work site, apparently later that same day, that the employee asked Mr. Kutz to report the employee=s injury to Mr. Thorson, and that Mr. Kutz later confirmed that he had done so.  The employee testified further that he worked the rest of his shift and didn=t go immediately to a doctor because he thought that the injury was just a Apinched nerve,@ eventually going to the emergency room in Mahnomen only about three weeks later, after his foot started Akilling@ him.  On cross examination, the employee indicated that the place where his alleged injury had occurred was Vergas, Minnesota, as he had also indicated on the First Report of Injury that he personally filled out on November 4, 1998.

 

Employment records in the form of time cards from the employer were introduced into evidence at the hearing, indicating that, instead of operating a rock crusher at a work site in Vergas, the employee was operating a front end loader at a work site in Rollag on the date of the alleged injury. Those records also failed to indicate that rock crusher screens were changed at any location on July 27, 1998, although such activity would normally have been noted.  These records were introduced into evidence without objection from the employee=s attorney, and the employee=s attorney offered neither an objection to their use to impeach the employee=s testimony nor any redirect examination following that impeachment to rehabilitate the employee=s position.

 

Also testifying at hearing, for the employer and insurer, was the employee=s co-worker Richard Kutz, who agreed that he and the employee on occasion had to change screens on a rock crusher

in the manner described by the employee, but he also testified that he and the employee had not changed a screen on July 27^th, 1998.  Mr. Kutz did testify that he Aknew [the employee] had a problem with his leg,@ that the employee had been favoring the leg Aquite a while,@ specifically Aby the [time of the?] Rollag location,@ and that the employee was honest and A[o]ne of the best [men] I ever worked with.@  He testified also, however, that he had no reason to dispute employment records indicating that the last time a screen was changed was July 10, 1998. 

 

In a Findings and Order filed May 9, 2000, Judge Hagen concluded in part that, Aon or about July 27, 1998,@ the employee had worked the entire day operating a front end loader at the Rollag site instead of a rock crusher at the Vergas site and so had not proven his claim to benefits based on a work injury on that date.  No appeal was taken from Judge Hagen=s decision.

 

On July 18, 2000, the employee filed another Claim Petition, alleging entitlement to temporary total disability benefits from November 3, 1998, to March 5, 2000, together with a 12% whole-body permanent impairment, this time consequent to a work injury on July 6, 1998.  In their Answer, the employer and insurer moved to dismiss the petition on grounds of res judicata and collateral estoppel.  That motion was subsequently denied by Compensation Judge Jeanne E. Knight on February 15, 2001, and the employer and insurer appealed from that denial.  The appeal was subsequently dismissed by this court on grounds that it was premature, in that Judge Knight=s order did not affect the merits of the case and this court therefore lacked jurisdiction over it.

 

The matter then proceeded to hearing before Compensation Judge James R. Otto on December 10, 2002, regarding the merits of the case.  Prior to hearing, the parties agreed to incorporate stipulations set forth in Judge Hagen=s May 9, 2000, decision, with certain exceptions including the provision that AJune or July of 1998" would be substituted for Aon or about July 27, 1998@ as the date of the alleged work injury.  The threshold and central issue at hearing was whether the employee had sustained an injury to his low back while working for the employer during that time period.

 

At the hearing, the employee testified in part that the initial pain from his work injury had been an immediate Ashort hot B real hot pain@ that went Adown straight to my foot.@  He also testified that, contrary to Mahnomen Health Center records in evidence, which indicate that there was no history of trauma and no injury, he had informed the attending physician at the Mahnomen Health Center on August 29, 1998, that he had injured himself changing the rock screen at work.  He testified further that he was sure that he had also informed the different attending physician at that clinic on September 11, 1998, of the manner of his injury, Abecause he must have asked me that.@  He also acknowledged, however, that attendants at the clinic had inquired into his insurance coverage and had written down AMedica,@ the name of his health insurer, and that he had not suggested that his condition might be covered by workers= compensation.  The employee also acknowledged in his testimony that, after he then saw Dr. Julius on referral, Dr. Julius had reported only a two-month history of left lower extremity discomfort Aof undetermined etiology,@ after standing or walking.  The employee testified that that record did not reflect his conversation with Dr. Julius.  The employee also agreed on cross-examination that the first time a work event is mentioned in a medical record as the cause of his complaints is Dr. Hutchison=s record for December 8, 1998, which references the alleged screen-lifting injury on July 27, 1998.  The employee also acknowledged that he had injured his back in 1995, although he had not reported such an injury to any examining physician other than Dr. Dean, at the time of his nerve conduction studies.

 

Also at that hearing, the employee=s co-employee Kutz also testified again, this time called by the employee.  Contrary to the employee=s continuing claim that he had personally reported his alleged work injury to Mr. Kutz on the date of the injury, Mr. Kutz testified that he was unaware of any incident of injury to the employee prior to being told of the employee=s left leg problem in November of 1998.  The employer=s owner, Mr. Thorson, also testified again at this second hearing, in part that neither the employee nor Mr. Kutz ever reported to him during June or July of 1998 that the employee had injured himself at work, notice of the alleged injury first being reported to him in November of 1998.  Mr. Thorson did acknowledge, however, that Mr. Kutz had mentioned to him, apparently back in July or August of 1998, that the employee had been having trouble with his leg since June of 1998.  He testified that he had asked Mr. Kutz about the cause of the employee=s leg problem and that Mr. Kutz had said that the employee didn=t know the cause.

 

By Findings and Order filed January 7, 2003, Compensation Judge Otto denied the employee=s claim to any benefits, concluding at Finding 10 that the employee had Anot sustained his burden of proof by a preponderance of the credible evidence that he sustained any incident of injury to his low back in June or July of 1998 that was a substantial contributing factor in his subsequent temporary total disability and/or need for medical treatment.@  Judge Otto found also that the employee=s testimony had not been entirely credible, particularly in light of its controversion by the testimony of Mr. Kutz, which the judge found Amore credible@ than the employee=s and Aprobably true.@  In his memorandum, the judge reiterated his conclusion that Ait is more probable than not that [the employee]=s low back/leg problem did not arise out of and in the course of his employment.@  The employee 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

 

The employee contends on appeal that a new trial is necessitated by the compensation judge=s conclusions as to the credibility of the witnesses before him, by the judge=s failure to properly apply the trivial injury rule, and by various procedural irregularities.  We are not persuaded.

 

This case hinges primarily on matters of credibility.  At Finding 3, the compensation judge concluded that the employee=s Acurrent claim that he injured his back some time other than July 27, 1998, . . . is not credible under the facts in evidence, including the lack of medical histories of any incident of injury occurring to him at work on any day other than July 27, 1998, and his prior sworn testimony as to when he sustained his claimed injury to his back.@  At Finding 5 the judge concluded also that the employee=s account of informing Mr. Kutz of his injury on the date of its occurrence was not credible, and at Finding 6 he concluded that AMr. Kutz=s testimony that he was not aware of any incident of injury to [the employee] prior to being told of his left leg problem in November of 1998 is more credible and accepted as probably true.@  The employee contends that a new trial is necessitated by Judge Otto=s findings as to the credibility of the witnesses before him, because those findings were based on invalid considerations and were contrary to res judicata determinations of Judge Hagen.  We do not agree.

 

The employee argues that the mere fact that medical records prior to November 3, 1998, do not identify the employee=s condition as being work related does not damage the credibility of his claim that he was injured at work prior to that date.  He argues that A[a] case can be proven by the testimony of an employee if his testimony is credible@ and that A[s]uch medical records do not contradict [the employee=s] testimony.@  We note, however, that the employee affirmatively testified that he either did or Amust have@ informed his doctors at Mahnomen Medical Center that his condition stemmed from a work injury and that he did not leave Dr. Julius with the suggestion that his injury was of unknown causes.  Yet those same doctors just as affirmatively reported the employee to be A[without] injury@ and with A[n]o [history] of trauma.@[1] and his pain to be Aof undetermined etiology.@[2]  Given such evidence, it was quite reasonable for the compensation judge to conclude that he could not credit both the employee and his doctors; that he chose the doctors was the judge=s prerogative.  See Brennan v. Joseph G. Brennan, M.D., 425 N.W.2d 837, 839-40, 41 W.C.D. 79, 82 (Minn. 1988) (assessment of a witness's credibility is the unique function of the trier of fact), citing Spillman v. Morey Fish Co., 270 N.W.2d 781, 31 W.C.D. 187 (Minn. 1978).[3]

 

At the first hearing, before Judge Hagen, Mr. Kutz had testified that he recalled that the employee=s leg had bothered him for Aquite a while,@ at least since their work at the Rollag work site on July 27, 1998.  At the second hearing, before Judge Otto, Mr. Kutz testified that he didn=t recall learning of the employee=s disability until after November 3, 1998.  In his memorandum, Judge Otto expressly acknowledged that Mr. Kutz=s testimony had changed, but he just as expressly indicated that he found the latter testimony more credible, A[b]ased upon the evidence when considered as a whole.@  The employee argues that it was unreasonable for the judge to credit such modified testimony over the testimony of the employee, particularly given the detail of Mr. Kutz=s testimony before Judge Hagen and the testimony of Mr. Thorson that he recalled Mr. Kutz informing him of the employee=s condition earlier than November 3, 1998.  We acknowledge the legitimate credibility issues in Mr. Kutz=s altered testimony, but we conclude that they are no greater than the credibility issues in the employee=s testimony as identified by the judge, which are borne out especially by scrutiny of the pre-November 3, 1998, medical record.  Given also the fact that Mr. Kutz never did, even at the first hearing, corroborate the employee=s report to him of a specific work injury on the day it occurred, we cannot conclude that the compensation judge unreasonably opted to credit Mr. Kutz=s testimony over that of the employee.

 

Near the end of the Memorandum accompanying his Findings and Order, Compensation Judge Hagen stated, AIn finding against the employee herein, this compensation judge is not saying that the employee=s testimony was not credible or in any way to imply that he is not a hard working and honest man.  To the contrary, all evidence supports these conclusions.@  Contrary to Judge Hagen=s assessment, Judge Otto expressly found, in Findings 3 and 5, Anot credible@ both the employee=s claim of a specific work injury while removing a screen on some date in June or July of 1998 other than July 27 and his testimony that he personally informed Mr. Kutz of such an injury at the time of its occurrence.  The employee contends that there is a basic unfairness in these contradictory assessments,[4] that Judge Otto should have been bound by the assessment of Judge Hagen under principles of res judicata, and that the case should be remanded to Judge Hagen for a new trial.  We conclude, however, that, while certain specific findings of fact as to claims for compensation may be res judicata in subsequent proceedings, any factfinder is always entitled to weigh, as he or she deems appropriate, the general credibility of witnesses as evidence.  As indicated earlier, the assessment of a witness's credibility is the unique function of the trier of fact, see, again, Brennan, 425 N.W.2d at 839-40, 41 W.C.D. at 82, and we will not reverse or remand this case based on the credibility findings of the compensation judge.

 

The employee also contends that the compensation judge failed to properly apply the trivial injury rule in his determination of the case.  The purpose of the trivial injury rule is to toll the statutory period during which notice of injury must be issued.[5]  See Clausen v. Minnesota Steel Co., 186 Minn. 80, 242 N.W. 397, 7 W.C.D. 146 (1932); see also Niesen v. Advanced Circuits, 60 W.C.D. 245 (W.C.C.A. 2000).  Given that we have affirmed the judge=s conclusion that the employee=s claim of a specific work injury was not credible, the issue of statutory notice of such an injury is moot, notwithstanding the judge=s finding on the issue.

 

The employee contends also that he is entitled to at least a new trial by virtue of certain procedural irregularities, including the following:  (a) the employer and insurer=s stipulation prior to the first hearing that the date of injury at issue was July 27, 1998, only to rebut and impeach the employee=s claim and credibility with time records showing that it was impossible for the injury to have happened on that date; (b) the compensation judge=s refusal to permit the employee=s attorney to ask leading questions of Mr. Kutz, who the employee contends was a witness Aidentified with the adverse party@; (c) the judge=s sustaining of the employer and insurer=s relevancy-based objection to direct questioning of the employee as to the date of his return to work after surgery; (d) the judge=s finding of a work injury three years earlier, a finding that the employee contends was irrelevant to the issues before the judge, responsive to an unlitigated issue, and unsupported by substantial evidence; and (e) the employer and insurer=s inaccurate dating, on cross-examination, of the first reference to a work injury in the medical records.  We conclude that none of these concerns is so prejudicial, either individually or collectively, as to have altered the outcome of the hearing.

 

With regard to issue (a), we find no prejudice in the employer and insurer=s stipulation as to the date of injury at issue, since it is not the obligation of either an opposing party or a compensation judge to ensure that a petitioner presents his most compelling case or a case least vulnerable to disproof.  With regard to issue (b), even if he were to be perceived as being Aidentified with the adverse party@Band we are not at all certain that he was--we do not find the judge=s prohibition of leading questioning of Mr. Kutz by the employee to have been prejudicial to the outcome of the case.  With regard to issue (c), any error on the part of the judge in sustaining an objection to the relevance of testimony by the employee as to the date of his return to work after surgery was not at all prejudicial in our opinion.  With regard to issue (d), we do not find the judge=s finding of an injury to the employee three years earlier either, as asserted by the employee, unsupported by substantial evidence, in light of both the employee=s medical records and his testimony, or, as also asserted by the employee, irrelevant, given the credibility issues at stake and other evidence, including the medical opinion of Dr. Dowdle, that the employee=s symptoms were due to a preexisting condition--particularly in light of the employee=s testimony as to both the date and the specific manner (a fall) of the earlier injury.  With regard to issue (e), we find no prejudice in the employer and insurer=s incorrect identification, on cross-examination of the employee, of the date of the medical record=s first reference to a work injury, since ultimately the judge=s decision hinged on the absence of any medical reference to a work injury occurring on a date prior to July 27, 1998, not on any failure of the employee to report a work injury prior to either November 3 or December 8, 1998.

 

The compensation judge=s denial of the employee=s claim, as framed before him, is hereby affirmed.