JAMES C. GLASGOW, Employee/Appellant, v. FRANCISCAN HEALTH CMTY., and MINNESOTA HEALTH CARE ASSOCS./GAB ROBINS, INC., Employer-Insurer/Cross-Appellants, and MEDICA HEALTH PLANS, FAIRVIEW HEALTH SERVS./UNIV. MED. CTR.- RIVERSIDE, UNIVERSITY OF MINN. PHYSICIANS, METROPOLITAN HAND SURGERY ASSOCS., and MEDICAL ADVANCED PAIN SPECIALISTS, Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

MAY 2, 2005

 

No. WC04-334

 

HEADNOTES

 

CAUSATION - SUBSTANTIAL EVIDENCE.  Substantial evidence, including expert medical opinion, supported the compensation judge=s decision finding no primary liability and/or medical causation for the employee=s wrist condition.

 

Affirmed.

 

Determined by:  Wilson, J., Johnson, C.J., and Pederson, J.

Compensation Judge:  Gary M. Hall

 

Attorneys:  James C. Glasgow, pro se, Minneapolis, MN, Appellant.  Jardine, Logan & O=Brien, Lake Elmo, MN, for the Cross-Appellants.

 

 

OPINION

 

DEBRA A. WILSON, Judge

 

The employee appeals from the judge=s finding that the employee did not sustain a work-related injury on January 28, 2004.  The employer and insurer cross-appeal from the judge=s finding regarding notice of injury.  We affirm.

 

BACKGROUND

 

The employee worked as an assisted living attendant for Home Once More, a resident care facility operated by Franciscan Health Community [the employer].  As an assisted living attendant, the employee performed job duties that included caring for residents and general upkeep of the facility.  Although he worked the night shift, the employee was occasionally required to assist with dressing and transferring residents to wheelchairs.

 

On February 15, 2004, the employee sought treatment for right upper extremity pain at Urgent Care at St. Paul Family Practice.^[1]  Two days later, on February 17, 2004, the employee treated with Dr. Jennifer Oberstar of the Quello Clinic, at which time the employee denied any trauma but indicated that he might have injured his right wrist at work.  Office notes from that visit indicate that the employee worked as a nursing assistant, a job that required a lot of lifting.  Those office notes also reflect that the employee had been diagnosed as having gout.  Dr. Oberstar=s diagnosis was a right wrist sprain.

 

The employee was seen at the United Hospital emergency room on February 19, 2004.  At that time, he dated the onset of his pain to February 13, 2004, and denied any recent injury.  Medical records from that date contain a past history of gout or pseudogout.  The doctor=s impression on that day was gout, and the employee was sent home with medications.

 

When the employee was seen at the Quello Clinic again on February 23, 2004, Dr. Alexander Axelrod recorded a history of pain and edema in the right wrist of about a week=s duration.  The employee denied any obvious injury or abnormal movement with his right hand.  The diagnosis at that time was arthritis and gout versus pseudogout of the right hand. 

 

The employee treated with Dr. Axelrod again on March 1, 2004, still complaining of right wrist pain and swelling.  Dr. Axelrod noted that lab work had revealed that the employee was positive for rheumatoid factor.  The employee was subsequently seen by hand specialist Dr. Robert O. Anderson, on March 9, 2004.  Dr. Anderson reported that the employee had suffered Aa twisting injury to his right wrist while working in a nursing home as a nursing assistant@ in late January.  Dr. Anderson aspirated the employee=s wrist and noted that the aspirated fluid was Apositive for extra cellular crystals consistent with gout or pseudogout.@  On March 10, 2004, the employee returned to see Dr. Axelrod, who noted that the employee had stated that Ahe forgot to mention that while he was working with Alzheimer=s diseased people, 1 of the men he worked with grabbed him and wrenched him while he was doing services.  Since that X he has been experiencing some pain in his R wrist.@

 

An Employee Incident Report was filed on March 4, 2004, listing an injury date of January 28, 2004, and the employee filed a claim petition on March 16, 2004, seeking temporary total disability benefits continuing from February 15, 2004, medical benefits, and the services of a QRC, as a result of a specific work injury that had allegedly occurred on January 28, 2004.

 

An MRI was performed on April 2, 2004, and Dr. Anne Minenko opined that it revealed tremendous swelling in the wrist and Aa strong suspicion for a torn ligament (scapholunate).@

 

The employee eventually came under the care of Dr. Matthew Putnam, an orthopedic surgeon at the University of Minnesota, who first treated the employee on May 5, 2004.  On June 22, 2004, Dr. Putnam performed a right wrist diagnostic arthroscopy.  Dr. Putnam=s assessment thereafter was degenerative joint disease of the right wrist and a tear at the scapholunate junction.  He gave the employee options for treatment, including three possible surgeries.

 

The employee was examined by Dr. William Call, for the employer and insurer, on  July 13, 2004.  In his report of August 17, 2004, Dr. Call wrote that the Ahistory, physical examination and record review [were] consistent with gouty arthropathy.@  It was his opinion that this diagnosis was not consistent with the alleged incident of January 28, 2004.  Dr. Call subsequently reviewed MRI scans performed on the employee=s right wrist, and, in a report dated September 8, 2004, stated that the scans were Acompletely consistent with gout and gouty arthropathy.@

 

Dr. Putnam=s deposition was taken on September 2, 2004.  At that time, he reiterated that the employee=s diagnosis was acute chronic scapholunate ligamentous injury of the right wrist with degenerative joint changes.  It was Dr. Putnam=s opinion that the injury of January 28, 2004, as reported to him by the employee, was a substantial contributing cause of the employee=s condition.

 

The claim petition proceeded to hearing on September 9, 2004, and, in findings and order filed on November 29, 2004, the compensation judge found that the employee did not prove that he had sustained a work-related injury to his right upper extremity on January 28, 2004, and that the appropriate diagnosis of the employee=s condition was nonwork-related gout.  The judge also made certain findings concerning notice of the injury.  Both parties appeal.

 

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 (2004).  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).

 

DECISION

 

1.  Employer=s Motion to Dismiss or Exclude Post-Hearing Evidence

 

The employee was represented by counsel at hearing but filed his appeal pro se.  The notice of appeal lists the specific findings and order appealed from but specifies the basis of the appeal as being Anewly discovered evidence, new medical reports substantiating injury.@  Attached to the employee=s notice of appeal were various documents, some of which were not introduced or received into evidence at the hearing before the compensation judge.

 

On January 4, 2005, the employer filed a motion to dismiss the appeal or to exclude the employee=s post-hearing evidence.  This court filed an order on March 3, 2005, stating that the motion would be deferred for consideration until after oral arguments.

 

  Upon review, we conclude that the employee=s appeal is not deficient in any way.  The notice of appeal clearly states the findings and orders appealed from, and the employee=s appellate brief adequately explains the basis for his appeal.  We therefore decline to dismiss the employee=s appeal.  In our review of the issues on appeal, however, we have not considered the Anew evidence@ submitted by the employee in connection with the notice of appeal.  This court=s function is to review the record created at the hearing before the compensation judge and to determine whether substantial evidence supports the compensation judge=s decision.  On appeal, this court may not consider evidence not contained in the record below.  Gollop v. Shale H. Gollop, D.D.S., 389 N.W.2d 202, 38 W.C.D. 757 (Minn. 1986).

 

2.  Primary Liability

 

At hearing, the employee testified that the January 28, 2004, work injury occurred as he was attempting to change an adult resident=s diaper.  According to the employee, that resident grabbed the employee=s right wrist with both hands, forcefully twisted it, and slammed it against a counter top.  The employee further testified that he felt two separate pops at that time and had immediate swelling and pain in his wrist.  He also testified that he told Cheryl Giberland, a coworker, of the incident when she reported for her shift.  Cheryl frequently operated as a Ago-between@ for the employee and his supervisor, Cheri Morris.  The employee testified that he did not notify Cheri Morris of the injury at that time.

 

In his brief on appeal, the employee argues that the compensation judge erred in denying his claim of a work injury, in that there was no testimony that Cheryl Giberland did not receive notice of the injury on January 28, 2004, and in that there was no testimony from Cheri Morris that the employee did not have to change adult diapers in the manner he described.  We are not persuaded.

 

The issue on appeal is whether substantial evidence supports the findings and orders of the compensation judge, not whether the evidence might support contrary findings.  In this case, the compensation judge denied the employee=s claim on two bases.  First, the judge found that the employee=s testimony regarding the January 28, 2004, incident was not credible.  The fact that the facility logbook entry for January 28, 2004, did not contain a history of the incident described by the employee, the fact that the employee did not seek medical treatment for the alleged injury until February 7, 2004, and the fact that the employee did not inform any doctor about the occurrence of a work injury until March 9, 2004, are all factors that the judge could reasonably take into account in making his credibility determination.  While the employee offered explanations concerning these points, the compensation judge was able to observe the employee=s demeanor in the courtroom and was in the best position to determine credibility.  Assessment of a witness=s credibility is the unique function of the trier of fact.  Even v. Kraft, Inc., 445 N.W.2d 831, 42 W.C.D. 220 (Minn. 1989) citing Brennan v. Joseph G. Brennan, M.D., 425 N.W. 2d 837, 839-40, 41 W.C.D. 97, 82 (Minn. 1988). We find no basis to overturn the judge=s credibility determination in this case.

 

The judge=s second basis for denying the employee=s claim was his acceptance of the medical opinion of Dr. Call over that of Dr. Putnam.  Dr. Call diagnosed nonwork-related gout.  Dr. Putnam diagnosed acute chronic scapholunate ligamentous injury of the right wrist, which he viewed as consistent with the injury the employee described as occurring on January 28, 2004.  A judge=s choice between experts whose testimony conflicts is usually upheld unless the facts assumed by the expert in rendering his opinion are not supported by the evidence.  Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).  The employee has not argued that Dr. Call relied on facts that were not supported by the evidence.  In addition, Dr. Call=s reports indicate that he reviewed the employee=s medical records in addition to conducting his own examination.  Accordingly, we find no basis to reverse the judge=s denial of the employee=s claim.

 

3.  Notice

 

The employer and insurer=s cross-appeal regarding notice of injury was contingent on our reversal of the compensation judge on the issue of primary liability.  As we have affirmed the judge=s findings on primary liability, we need not address the cross-appeal.  The judge=s decision is affirmed in its entirety.