Berg v. Trailer Transfer, Inc.

STEVEN BERG, Employee/Appellant, v. TRAILER TRANSFER, INC., and BERKLEY RISK ADM'RS CO., Employer-Insurer.

CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence, including expert medical opinion, supported the compensation judge=s conclusion that the employee was hypoglycemic at the time of his motor vehicle accident and that the hypoglycemia was a substantial contributing cause of the accident.

EXCLUSIONS FROM COVERAGE - JOB APPLICATION. Where the employee intentionally failed to inform examining physicians of his diabetes condition in connection with his application with the United States Department of Transportation for a commercial driver=s license, and then indicated on his application for employment with the employer that he had a valid commercial license, the compensation judge was justified in concluding that the employee had made a material misrepresentation concerning his physical condition in his application for employment, within the meaning of Jewison v. Frerichs Constr., 434 N.W.2d 259, 41 W.C.D. 541 (Minn. 1989).

Attorneys: Jeffrey R. Hannig, Hannig & Associates, Fargo, ND, for the Appellant. Mark J. Freeman, Fitch, Johnson, Larson & Held, Minneapolis, MN, for the Respondents.

The above entitled matter comes before this court on the employee=s appeal from the compensation judge=s findings and order determining that the employee=s claim for workers= compensation benefits is barred pursuant to Jewison v. Frerichs Constr., 434 N.W.2d 259, 41 W.C.D. 541 (Minn. 1989). We affirm..

Steven Berg [the employee] commenced employment in May 2001 as a truck driver for Trailer Transfer, Inc. [the employer]. His job duties included picking up and delivering railroad containers and hauling soybeans and sunflowers in Minnesota and North Dakota. Qualifications for the job included a valid commercial driver=s license [CDL] and having passed the prescribed physical examination by the U.S. Department of Transportation.

The employee=s medical history is significant for a diagnosis of type 1 diabetes mellitus dating back to at least 1978. He has been an insulin-dependent diabetic since his initial diagnosis. Medical records reflect that the employee was not always careful about maintaining a proper diet for his diabetic condition, that he did not undergo medical checkups for the condition for periods of years, and that he did not always keep accurate records concerning his blood sugar levels.^[1]

The employee testified that he had possessed a CDL and had driven trucks for various employers for a number of years. He acknowledged that uncontrolled diabetes could be very dangerous when driving a semi and that federal regulations prohibit the issuance of a CDL to insulin-dependent diabetics.^[2] He obtained his CDL by not revealing his status as an insulin-dependent diabetic either to his employers or to the doctors performing medical exams for purposes of renewing his license. The employee testified that he knew he could not drive a truck for employment if he revealed his diabetic condition. He testified further, however, that his diabetes condition had never interfered with his ability to do his job and that he had not had any accidents while driving more than a million miles for work.

On January 31, 2002, the employee was involved in a motor vehicle accident while driving between Dilworth and Crookston, Minnesota, on behalf of the employer. At that time, the employee was maintaining a glucometer log in which he noted his blood glucose values prior to breakfast, lunch, dinner, and bedtime. On the morning of the accident, at approximately 7:00 a.m., the employee recorded a blood glucose level of 106 mg/dL (milligrams per deciliter). The employee testified that, before leaving for work that day, he had prepared a lunch to eat in the truck while at work. At about 11:00 a.m., and before eating his lunch, the employee recorded a blood glucose level of 65 mg/dL. Shortly thereafter, the employee lost control of the truck, which went into a ditch by the side of the highway and continued forward until crashing into an embankment. According to best estimates, the accident occurred between 11:00 a.m. and ll:20 a.m.

A witness to the accident testified that he called for assistance immediately, and records reveal that emergency assistance was called at 11:20 a.m. and arrived on the scene at 11:35 a.m. At ll:50 a.m., a paramedic administered a test to determine the employee=s blood sugar level. The reading at that time was found to be 35 mg/dL, and the employee was treated with an ampule of 50% glucose solution. By noon, the employee=s blood sugar level had risen to 214.

Following the accident, the employee underwent significant medical treatment, including fusion surgery due to an unstable L3 burst fracture. It is undisputed that the employee was temporarily totally disabled from January 31, 2002, through October 5, 2002, and temporarily partially disabled from October 6, 2002, through August 10, 2003. On the date of the accident, the employee was fifty-one years old and was earning a weekly wage of $360.00.

On October 29, 2002, the employee=s treating doctor for his diabetes, Dr. Juan Munoz, reported that a blood glucose level of 65 mg/dL, such as recorded by the employee at 11:00 a.m. on January 31, 2002, is normal. The doctor further stated that, by definition, hypoglycemia, or low blood sugar, is a level below 50. In a letter to the employee=s attorney on June 23, 2003, Dr. Munoz opined that,

although [the employee] was found to have a glucose level of 35 mg/dl at ll:50 a.m., 50 minutes after the 65 mg/dl test, it is difficult to tell whether this patient was hypoglycemic at the time of the accident. It would be very unlikely that his glucose level would drop from a normal level of 65 mg/dl to a hypoglycemic level in a very short period of time since the accident took place between 11 a.m. and ll:20 a.m.

Dr. Ronald Vessey performed a medical record review at the request of the employer and insurer. In a report dated October 1, 2003, Dr. Vessey noted that insulin-dependent diabetics are at risk of significant hypoglycemic events. He commented that blood sugar values below 55 mg/dL put a patient at great risk of developing any number of symptoms, including mental dullness, confusion, and a distinct loss of motor control. He stated that

[the employee=s] blood sugar value of 35 mg/dL, at ll:50 a.m. on 01/31/02, obviously reflected profound hypoglycemia being present. [The employee=s] hypoglycemia obviously impaired his ability to operate a motor vehicle. I really have no difficulty believing that this patient=s blood sugar continued to spiral on downward from 65 mg/dL, which is basically a fairly low preprandial value reflecting very tight control, down to the 35 mg/dL range 50 minutes later.

Dr. Vessey opined Athat this patient=s hypoglycemia on the morning of 01/31/02 contributed to his being involved in a motor vehicle accident.@

The employee=s claims for workers= compensation benefits came on for a hearing before a compensation judge on December 10, 2003. At trial, the employee testified that he had experienced hypoglycemic reactions in the past, was aware of the symptoms, and was not experiencing such a reaction at the time of the accident. According to his description of events, the accident occurred when the cruise control on his truck failed to disengage as he was approaching a slower-moving vehicle in front of him. The employee testified that he then elected to pass the car on the right shoulder and eventually lost control driving into a ditch. The employee further testified that he panicked, unfastened his seat belt, and sat on the floor of the cab to see if there was something under the brake. As he was sitting on the floor, the employee explained, he was trying to find the switch to turn off the cruise control while at the same time holding onto the steering wheel with one hand trying to stay in the ditch. The employee acknowledged that, while sitting on the floor of the cab, he was not able to look out the window of the truck to see where he was going. The witness to the accident testified that the employee=s truck did not slow at all as it proceeded along the bottom of the ditch, until it hit the embankment.

In a Findings and Order issued January 14, 2004, the compensation judge determined that the employee had sustained a personal injury arising out of and in the course of his employment, but the judge denied the employee=s claim based upon the employer=s Jewison defense. At Finding 13, the judge determined that

[t]he employee admittedly made false representations when being medically/physically examined and when making applications for his commercial driver=s license. The court finds that because of these falsehoods the employee thereby also knowingly and willfully made false representations to the employer concerning his physical condition by filling out the application for employment indicating that he had undergone the prescribed U.S. Department of Transportation physical test in July 2000. (Exhibit AF@) The employee knew that he could not drive a truck for employment if he had revealed his diabetic condition and it was based upon the employee=s application that the employer hired the employee. The employer would not have hired the employee if the employer knew the employee had the diabetic condition and had falsified information to obtain the driver=s license.

The judge further determined that the employee=s claims were barred under applicable case law, and at Finding 14, he concluded as follows:

The employee knowingly and willfully made false representations as to his physical condition. The employer substantially and justifiably relied on the false representations in hiring the employee. A causal connection existed between the false representations by the employee and the employee=s subsequent injury. The application required by the employer inquired about bonafide occupational qualifications. The Federal and State regulations for employee truck drivers do not allow insulin-dependent diabetics to be licensed. There was no violation of the Minnesota Human Rights Act by the employer in this case.

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.

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.

The employee contends that Jewison is not applicable to this case because the employer never asked the employee, either verbally or in writing, any questions regarding his health. As such, he argues, he made no representations to the employer regarding his physical condition, and the judge=s finding that he knowingly and willfully made false representations to the employer is unsupported by any evidence in the record. We disagree.

Whether the employee knowingly and willfully made a false representation as to his physical condition is a question of fact. As such, we must affirm unless, in view of 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). It is absolutely clear, both from the medical records and also from his own testimony, that the employee was very well aware of the seriousness of his diabetic condition and of the potential danger posed by such a condition in terms of the employee=s ability to safely drive a semi-truck on the highways. The employee acknowledged that he had falsely represented his physical condition to medical examiners in order to obtain a commercial driver=s license. He acknowledged also that he knew he would not be permitted to drive a truck for employment if he revealed his diabetic condition. The compensation judge reasoned that the employee=s application for employment contained false representations as to his physical condition through his representation to his employer that he had passed the prescribed U.S. Department of Transportation physical test in July 2000. The employee=s representation as to the Department of Transportation licensing test provides adequate basis to support the conclusion that the employee was knowingly and willfully concealing, and therefore falsely representing, his medical condition at the time of his job application. Accordingly, we affirm the judge=s finding of a false representation. Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.

The remaining issue in this matter concerns causation. At Finding 10, the compensation judge determined that the employee=s motor vehicle accident was caused by profound

hypoglycemia, which impaired the employee=s ability to control the truck he was driving. In other words, the judge found that a causal connection existed between the false representation and the injury. In arriving at this conclusion, the judge stated that he had accepted Dr. Vessey=s conclusions as the most accurate concerning the relationship of the employee=s physical condition and his motor vehicle accident. The employee contends Dr. Vessey=s opinions lack proper foundation and are based on unjustified and erroneous assumptions of fact not corroborated by other evidence in the record. The essence of the employee=s argument is that there is no basis for Dr. Vessey=s conclusion that, because the employee had a hypoglycemic blood glucose level of 35 at ll:50 a.m., more than one-half hour after the accident, he also had a hypoglycemic blood glucose level at the time of the accident. This is especially so, the employee contends, given the fact that he had not been hypoglycemic at the time he took his blood glucose reading at approximately 11:00 a.m. We are not persuaded.

As a general rule, A[t]he competency of a witness to provide expert medical testimony depends upon the degree of the witness= scientific knowledge and the extent of the witness= practical experience with the matter which is the subject of the offered testimony.@ Reinhardt v. Colton, 337 N.W.2d 88, 93 (Minn. 1983). Here, Dr. Vessey reviewed and described many of the pertinent medical records and was clearly aware of the employee=s blood glucose level at ll:00 a.m. and ll:50 a.m. He was also aware that the estimated time of the accident was between 11:00 a.m. and ll:20 a.m. With an understanding of these facts, Dr. Vessey opined on October 1, 2003, and again on December 8, 2003, that the employee=s hypoglycemia on the morning of January 31, 2002, contributed to his involvement in the motor vehicle accident. Granted, the doctor did not explain the basis for his opinion that the employee was hypoglycemic at the time of the accident. However, such a lack of explanation is for the compensation judge to weigh and does not go to foundation. See Goss v. Ford Motor Co.55 W.C.D. 316 (W.C.C.A. 1996). Given the circumstances here, we cannot conclude Dr. Vessey=s opinions lack foundation, we believe that the compensation judge was entitled to rely on those opinions in arriving at his decision.

It is not the function of this court to retry the case or re-evaluate the weight to be afforded the evidence. That is the job of the compensation judge as trier of fact. Where evidence is conflicting or more than one inference may reasonably be drawn from the evidence, the findings of the compensation judge are to be upheld.

Redgate v. Sroga=s Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988).

Although a different factfinder might have reached a different conclusion, we cannot say, upon careful review of the record as a whole, that the compensation judge=s determination is clearly erroneous or without at least minimally adequate evidentiary support. We must, therefore, affirm. Minn. Stat. ' 176.421, subd. 1(3).⁴

^[1] On July 2, 2001, Dr. Randall Kenninger reported that it had been over two years since the employee=s last visit to a physician for his insulin-dependent diabetes. On January 28, 1999, Dr. Craig Sprenger noted that the employee had not been seen by a doctor for his diabetes for about six or seven years, that he did not check his finger sticks daily, and that he did not follow much of a diabetic diet. (Exh. A, Meritcare Medical Group).

^[2] See 49 C.F.R. ' 391.41 (2000) (Exh. 5).

^[3] The court acknowledged that no direct statutory authority existed to deny workers= compensation benefits because of a misrepresentation by an employee. By implication, however, the court found Astatutory evidence of a public policy regarding an employee=s obligation of truthful pre-employment health disclosure to a prospective employer.@ Jewison, 434 N.W.2d at 261, 41 W.C.D. at 544. Referring to an employer=s right to seek reimbursement from the Special Compensation Fund when an employee incurs an injury and suffers a disability that would not have occurred or would not have been as serious but for a pre-existing physical impairment, the court noted that Minn. Stat. ' 176.131, subd. 3 (1986), required the employee to be registered with the Commissioner prior to his injury. Therefore, it concluded, Aconcealing a pre-existing condition may deprive the employer of the benefits available to [it] under the Fund.@ Id. We note that Minn. Stat. ' 176.131 was repealed by Laws 1992, c. 510, art. 3, ' 36, effective July 1, 1992.

^[4] We acknowledge the employee=s extensive argument concerning the materiality of the judge=s various credibility findings. We would note that credibility assessments are a unique function of the trier of fact. Moreover, having affirmed the judge=s Jewison findings as having adequate support in this record, we need not address the judge=s credibility findings.