DONALD W. RADKE, Employee/Appellant, v. GREEN VIEW, INC. and NATIONAL FARMERS UNION CAS. GROUP, Employer-Insurer, and BLUE CROSS/BLUE SHIELD OF MINN., Intervenor.

 

WORKERS= COMPENSATION COURT OF APPEALS

NOVEMBER 14, 2003

 

HEADNOTES

 

CAUSATION - SUBSTANTIAL CONTRIBUTING CAUSE.  Substantial evidence supported the compensation judge=s determination that the employee=s work injury resolved prior to the period for which benefits were sought, despite arguably unopposed medical evidence supporting the employee=s claim, where the medical opinions were premised on the employee=s account of the incident and his symptoms, which the compensation judge reasonably rejected.

 

Affirmed in part and reversed in part.

 

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

Compensation Judge:  Bradley J. Behr.

 

Attorneys:  Mark J. Fellman, Attorney at Law, St. Paul, MN, for Appellant.  Deborah L. Crowley, Nancy Lamo, McCollum, Crowley, Moschet & Miller, Minneapolis, MN, for Respondents.

 

OPINION

 

DEBRA A. WILSON, Judge

 

The employee appeals from the compensation judge=s denial of temporary total disability benefits following the employee=s termination and from the judge=s denial of treatment expenses related to the employee=s low back condition.  We affirm the judge=s denial of wage loss benefits but reverse the denial of medical expenses for treatment provided through May 30, 2002.

 

BACKGROUND

 

The employee was employed by Greenview, Inc. [the employer], as a freeway rest stop attendant.  His primary job was to keep the rest stop building clean.  On September 13, 2001, the employee was involved in an altercation with a truck driver at the rest stop.  Accounts of the altercation differ.  The employee testified that he was shoved against a door and was struck at least three times by the truck driver after he instructed the driver not to enter an adjoining wooded area that was considered off limits at night.  As the employee described it, the truck driver was Ajust like a bull, a football player,@Apounding@ the employee Aon the back of the neck and the shoulder and a couple of times in the face@ after the employee Awent down real quick@ from the shove.  The employee also testified that the shove against the door drove the doorknob right into his back.  The truck driver, however, testified that the employee pushed him first and that he merely pushed back to get the employee away from him, and he adamantly denied ever striking the employee beyond that push.  Immediately after the altercation, the employee indicated that he was going to call the sheriff, and the truck driver waited in his truck for the sheriff to arrive.  The sheriff=s report contains both versions of the event and indicates that neither the employee nor the truck driver was interested in pursuing criminal charges.

 

After completing his shift, the employee sought treatment from Dr. Anthony Walsh.  The doctor=s treatment note for this examination reads, in its entirety, as follows:

 

S -- 60-year-old gentleman comes in.  Was injured at work on the morning of 9-13-01 at about 1:00 a.m.  He works as a security guard at a truck stop when he was attacked by a man.  The patient explains he was trying to get the door open to his office to get away from the man and was finally able to get the door open and got into his office and closed the door behind him.  However, the man had hit him.  The patient ended up having an abrasion to the back of his right hand and also to his sacrum.  The patient was concerned about HIV.  The police had been called and the man was arrested.  He doesn=t know if an HIV test would be done.  I explained that he could speak to the police department and request they ask the gentleman to consent to an HIV test.  It appears there was no blood exposure.  The patient wasn=t sure how he got the abrasion on his hand -- if he had struck the person or if he just hit it against the door.  The patient thought possibly he hit the person in the mouth and was concerned that saliva might have gotten on the wound.  Explained that saliva is not a high risk for spreading HIV.

O -- Patient appears in no distress.  Vital signs as noted above.  Patient has a superficial abrasion to the sacrum of his low back.  It appears clean and noninfected.  The patient has a superficial abrasion to the dorsal surface of his right hand.  It appears clean.

A -- Abrasion to hand.  Abrasion to sacrum.

P -- The patient would like to have an HIV test.  Will do that and have it repeated in two months and again in six months.  Did advise that he contact the police department and ask if the attacker would consent to an HIV test.

 

The employee lost no time from work and performed his usual job for the next several months.

 

On January 1, 2002, the employee sustained a work-related injury when his right ring finger was pinched between a metal garbage can lid and the concrete garbage can base.  Two days after the injury, he received treatment from Dr. Walsh, who diagnosed Amallet finger@ and prescribed a splint to be worn for six weeks.  However, the employee apparently performed his usual job, despite the injury and need for the splint, for the next several weeks.

 

On January 24, 2002, the employee was terminated from his job during an inspection visit by Joseph Kausner, a field supervisor, to the rest area at which the employee was working.  The circumstances of the employee=s termination are disputed.  The employee testified that Mr. Kausner used degrading and threatening language regarding the cleanliness of the rest area and terminated him after an argument with another worker about the condition of the bathrooms. Mr. Kausner testified that the employee=s work had often been unsatisfactory and that the rest area was very dirty that day.  According to Mr. Kausner, after being unable to get a satisfactory response from the employee about the deficiencies, Mr. Kausner told the employee, Awhat I should really do is just let you go,@ to which the employee respondent, Ago ahead.@  It was at that point, Mr. Kausner testified, that he told the employee to turn in his key and his badge.

 

On February 12, 2002, following his termination, the employee was seen again by Dr. Walsh, complaining of having experienced Achronic low back pain,@ that had been worsening, ever since the September 13, 2001, altercation with the truck driver.  Dr. Walsh recommended various restrictions and referred the employee for physical therapy.  Nine days later, on February 21, 2002, the employee was seen by Dr. Walsh in follow-up of his ring finger injury.  Dr. Walsh discontinued the employee=s use of the splint and advised the employee to avoid heavy gripping Afor another two weeks.@

 

The employee subsequently treated for both ring finger and low back symptoms.  In April of 2002, Dr. Walsh continued the employee=s restriction against heavy gripping but subsequently removed that restriction on June 20, 2002, finding no need for follow-up treatment with respect to the finger injury.  Additional low back care included a lumbar CT scan, which was performed on October 29, 2002.  That scan was read to reveal disc bulging and spurs at several levels but no definite herniations.  The employee is not considered a surgical candidate.

 

Despite a job search, the employee remained unemployed following his January 24, 2002, termination.  He testified that he was not physically capable of performing some jobs because of the lifting restrictions related to his low back condition.  He also testified that he had been  rejected for at least one job opening due to his age.

 

The matter came on for hearing on April 30, 2003, for resolution of the employee=s claim for medical expenses related to his low back condition and temporary total disability benefits following his January 24, 2002, termination.  The employer and its insurer admitted liability for the employee=s January 2002 ring finger injury but denied liability for the employee=s alleged September 2001 low back injury, contending in part that the assault did not arise out of or in the course of the employee=s employment and that they also Aquestion[ed] the nature and extent of the injury.@  The employer and insurer further contended that the employee was not entitled to temporary total disability benefits because he had been discharged for misconduct and because he had not diligently sought alternative employment.  The parties stipulated as to service of notice of maximum medical improvement [MMI] and as to the reasonableness and necessity of the medical treatment paid for by intervenor Blue Cross/Blue Shield of Minnesota, which had intervened and was separately represented at hearing.  Evidence included the employee=s medical records; the report of Dr. Gary Wyard, the employer and insurer=s independent examiner; and the testimony of the employee, Mr. Kausner, and the truck driver involved in the September 13, 2001, incident with the employee.[1]

 

In a decision issued on May 20, 2003, the compensation judge determined that the September 13, 2001, Aassault/altercation, and any injuries sustained therein by the employee, arose out of and in the course of his employment@ and that the employee had not been terminated for misconduct within the meaning of Minn. Stat. ' 176.101, subd. 1(e)(1).  The judge also determined, however, that the injuries sustained by the employee in the September 13, 2001, incident were in the nature of an abrasion to the employee=s right hand and sacrum and were temporary, resolving prior to January 24, 2002, the date of the employee=s termination from employment.  Further finding that the employee=s finger injury was not a substantial contributing cause of the employee=s wage loss following his termination, and that the employee=s low back symptoms and treatment were not causally related to the September 13, 2001, incident, the judge denied all claimed wage loss and medical expense benefits.  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

 

1.  Causation - Low Back Condition

 

Dr. Walsh, the employee=s treating physician, concluded that the employee had sustained a low back strain in the September 13, 2001, work incident and that, as of September 11, 2002, the employee had not reached maximum medical improvement [MMI] from that injury and remained subject to restrictions related to his low back condition.  The May 30, 2002, causation opinion of Dr. Wyard, the employer=s examiner, is less clear.  Dr. Wyard indicated that the employee had no disability with regard to either his finger injury or his low back condition as of the date of his examination but that the employee=s treatment through that date had been Areasonable and necessary to address [the employee=s] subjective complaints@ secondary to the two injuries.  However, Dr. Wyard also indicated that the employee had reached MMI with Aregard to the September 13, 2001 contusion to his sacrum@ three months after the injury, and he did not explicitly indicate whether or not he believed the employee to have sustained any work-related back injury beyond that contusion.

 

The compensation judge concluded that the September 13, 2001, work injury was temporary and had resolved prior to the employee=s January 24, 2002, termination.  The employee appeals, contending that the judge=s decision is contrary to uncontroverted medical opinion and to the employee=s testimony as to the continuing nature of his low back symptoms after the September 13, 2001, incident.  The employee also points out that there is no evidence as to any other cause of the employee=s back condition.  After review of the entire record, we are not persuaded that the judge=s decision is clearly erroneous or unsupported by substantial evidence.

 

In findings relevant to the issue of causation, the compensation judge wrote as follows:

 

4.  The employee sought treatment at Allina - River Valley Clinic on 9/13/01.  The medical records indicate that he had a superficial abrasion to his right hand and sacrum.  The employee was concerned about HIV exposure.  The records contain no documentation of complaints of low back pain, leg pain, leg numbness, facial bruising, head pain or neck pain.  The employee was released to return to work without restrictions.  He sought no further treatment for his low back until 2/12/02, after his termination by the employer.

 

5.  The employee continued to perform his normal job from 9/13/01 to 1/23/02 without restrictions related to his back or neck.  He wore a splint on his right ring finger but had no restrictions related to the finger injury.  He did not lose time from work or seek accommodations from his employer because of low back pain, leg pain, neck pain or shoulder pain.

 

6.  The preponderance of the evidence demonstrated that the employee sustained abrasions to his right hand and sacrum on 9/13/01 which were temporary in nature, and which had resolved prior to 1/24/02.

 

In his memorandum, the compensation judge further explained,

The contemporaneous medical records fail to support the employee=s testimony that he sustained significant injuries to his neck, upper back and low back on 9/13/01.  He sought treatment at the Allina River Valley Clinic on the date of the assault.  The record of this visit indicates only that the employee sustained superficial abrasions to the back of his right hand and to his sacrum.  He was concerned about HIV exposure.  While the employee testified that his low back Ahurt like crazy@, the record contains no reference to complaints of low back pain or leg symptoms.  He did not describe being beaten about the face, neck or upper back.  The treating physician, Dr. Anthony Walsh, did not order x-rays or prescribe any medications or physical therapy.  He released the employee to work without restrictions.

 

At hearing the employee testified that he continued to experience significant low back pain over the next 5 months.  In addition, he indicated that within 2 weeks after the injury he began to experience tightening of his left leg with numbness of his toes.  He said that he continued to take medications which had been prescribed for a prior knee injury and that when these ran out he returned to see a doctor.

 

The employee did not seek additional medical care for his low back until 2/12/02, some five months after his injury.  At this point he had been terminated by the employer.  He advised Dr. Walsh that he had experienced chronic pain, which had gradually increased since the date of injury.  He described constant pain, which was worse with bending and arising from a sitting position.  Range of motion was normal and no leg symptoms were described.

 

The employee=s credibility was called into question with respect to his description of the 9/13/01 altercation, his symptoms from 9/13/01 to 2/12/02, and the circumstances of his termination on 1/24/02.  The alleged assailant, Carl Stras, testified that the employee had been the aggressor.  He denied that he had struck the employee with his hands at any point and indicated that he had pushed the employee, but did not drive him against the door.^[[2]]

                                                                          * * *

 

The employee was terminated by the employer on 1/24/02.  It was not until three weeks later that he returned to Dr. Walsh with complaints about chronic and constant low back pain since 9/13/01.  Interestingly, he did not complain to his supervisors, including Mr. Kausner, about low back symptoms or difficulties in performing his job prior to his termination.  It would certainly seem that he would have mentioned any physical symptoms or limitations to Mr. Kausner as an explanation for his poor job performance.

 

It is the judge=s function as factfinder to assess the credibility of witnesses, see Even v. Kraft, Inc., 445 N.W.2d 831, 42 W.C.D. 220 (Minn. 1989), and we see no error or abuse of discretion with regard to the judge=s conclusions as to credibility in the case now before us.

 

Whether or not this case can be characterized as one involving uncontroverted expert opinion as to causation, it was not unreasonable for the compensation judge to reject the employee=s claim based on his conclusions as to the employee=s credibility.  See Tuomela v. Reserve Mining Co., 299 Minn. 203, 216 N.W.2d 638, 27 W.C.D. 312 (1974); Flansburg v. Giza Plumbing & Heating, 284 Minn. 199, 169 N.W.2d 744, 25 W.C.D. 3 (1969).  The judge simply did not believe the employee=s testimony regarding the circumstances and nature of the September 13, 2001, incident or the employee=s low back condition prior to his termination by the employer.  This was the judge=s prerogative.  And, because supporting medical opinion was apparently premised on the assumption that the employee experienced continuing low back symptoms after the work incident -- an assumption rejected by the judge -- it was equally reasonable for the judge to reject the medical opinions on this issue.

 

Substantial evidence supports the compensation judge=s decision that the employee=s work-related back injury was in the nature of a contusion, which resolved prior to his termination, and we therefore affirm the judge=s decision on this issue.

 

2.  Temporary Total Disability

 

Given our affirmance of the judge=s conclusion that the employee=s September 13, 2001, back injury resolved prior to his termination by the employer on January 24, 2002, the employee=s admitted ring finger injury provides the only remaining basis for temporary total disability benefits following the termination.  The employee acknowledges that he was not subject to any restrictions related to his ring finger injury after June 20, 2002, the date Dr. Walsh indicated that he could return to full duty work.  As such, the issue on appeal is whether substantial evidence supports the compensation judge=s denial of temporary total disability benefits from January 25, 2002, the day after the employee=s discharge from employment, through June 20, 2002.

 

We affirm the compensation judge=s denial of temporary total disability benefits through February 21, 2002, as there is no evidence that any physician imposed restrictions relative to the employee=s finger injury prior to this date.  Furthermore, in that Dr. Wyard indicated that the employee had no need for restrictions relative to his finger as of May 30, 2002, the judge=s denial of temporary total disability benefits after that date is also supported by substantial evidence.  The more difficult question concerns the judge=s denial of temporary total disability benefits from February 21, 2002, to May 30, 2002, a period during which Dr. Walsh had restricted the employee from heavy gripping or grasping.

 

As a general rule, an employee subject to restrictions related to a work injury establishes entitlement to temporary total disability by conducting a diligent search for employment.  See, e.g., Redgate v. Sroga=s Standard Serv., 421 N.W.2d 729, 40 W.C.D. 948 (Minn. 1988).  In the present case, the employee introduced job logs and testified as to his job search efforts following his termination, and the judge did not deny temporary total disability benefits on job search grounds but rather on grounds that the employee did not show that his unemployment was causally related to his right ring finger injury.  Under the particular circumstances of this case, we cannot conclude that the judge erred in denying benefits on this basis.

 

As the compensation judge noted, there is no evidence that the employee had any trouble performing his usual cleaning duties for the employer after his ring finger injury through the date of his termination, despite his use of a splint.  Moreover, as the judge also noted, the jobs that the employee applied for after his termination were the kind of jobs which might reasonably require firm grasping, such as labor and carpentry jobs, which supports the inference that the employee did not consider himself disabled from those kinds of employment.  In fact, the employee testified that he Anever thought about restrictions on my finger,@ that the Adoctor never really went into that.@  He also offered no testimony indicating that he considered himself limited in any way as a result of the finger injury.  Given this evidence, the compensation judge could reasonably conclude that the employee did not establish total disability, under the Atotality of the circumstances,@ following his termination from employment by the employer on January 24, 2002.  See Marsolek v. Geo. A. Hormel & Co., 438 N.W.2d 922, 41 W.C.D. 964 (Minn. 1989).  We therefore affirm the judge=s decision on this issue.

 

3.  Medical Expenses

 

The judge denied the employee=s claim for medical expenses relating to low back treatment on causation grounds.  On appeal, the employee argues in part that the judge ignored a stipulation of the parties as to the compensability of treatment through May 30, 2002, the date on which Dr. Wyard reported that no further low back care was reasonable or necessary.  The employer and insurer respond by alleging that, while they stipulated that low back treatment through May 30, 2002, was reasonable and necessary to treat the employee=s low back condition, they never stipulated as to causation, that A[a]t no time, did the Employer and Insurer agree that the treatment was automatically compensable if the compensation judge found the September 13, 2001 injury compensable.@  However, the hearing record clearly reveals that such an agreement was in fact made.

At the beginning of the hearing, when the parties stated their positions and claims, the employer and insurer indicated that they were denying that the assault was work-related and that they were also Aquestioning the nature and extent of the injury.@  However, later, with regard to medical expenses, the following exchange occurred:

 

THE COURT:  Okay.  And Ms. Crowley, that the employer and insurer would stipulate that if I find that the September 13, 2001 injury is a compensable injury that Blue Cross/Blue Shield would be entitled to reimbursement for all treatment prior to May 30, 2002.

 

MS. CROWLEY:  That=s correct.

 

At that point, the intervenor=s attorney left the hearing.

 

As we see it, the language quoted above is clear:  the employer and insurer agreed to pay for low back treatment through May 30, 2002, if the injury was found compensable; no causation defense was reserved.  In his findings, the judge in fact determined that the injury was compensable -- that is, that it was not the result of a personal assault.  Given the employer and insurer=s stipulation, the compensation judge erred in denying reimbursement to the intervenor for low back treatment charges incurred through May 30, 2002.  The judge=s decision on this issue is therefore reversed.  The judge=s denial of low back treatment expenses after May 30, 2002, is affirmed on causation grounds, in accordance with the judge=s temporary injury finding.