BRIAN J. GUNDERSON, Employee/Cross-Appellant, v. MAC=S LANDSCAPING CTR. and WESTERN NAT=L MUT. GROUP, Employer-Insurer/Appellants, and WESTERN NAT=L (PIP), Intervenor.

 

WORKERS= COMPENSATION COURT OF APPEALS

FEBRUARY 15, 2005

 

No. WC04-261

 

HEADNOTES

 

ARISING OUT OF & IN THE COURSE OF - DEVIATION FROM EMPLOYMENT; ARISING OUT OF & IN THE COURSE OF - PROHIBITED ACT.  Where the employee was traveling as a passenger between the employer=s premises and a work site, where any deviation had ended by the time of the injury, and where there was no evidence that a slight detour for a restroom break and to pick up food items for lunch was prohibited by the employer, substantial evidence supports the compensation judge=s determination that the employee=s injuries arose in the course of employment.

 

CAUSATION - SUBSTANTIAL EVIDENCE.  Substantial evidence in the form of adequately founded opinion by the employee=s treating doctor supports the compensation judge=s decision that the employee sustained a work-related injury to his left eye.

 

TEMPORARY TOTAL DISABILITY - SUBSTANTIAL EVIDENCE.  Substantial evidence supports the compensation judge=s award of temporary total disability benefits where the employee had not been released to work by his treating doctor.

 

Affirmed; cross-appeal dismissed.

 

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

Compensation Judge: Gregory A. Bonovetz

 

Attorneys: Duane E. Arndt, Arndt & Benton, Minneapolis, MN, for the Cross-Appellant.  Krista L. Twesme, Aafedt, Forde, Gray, Monson & Hager, Minneapolis, MN, for the Appellants.

 

 

OPINION

 

DAVID A. STOFFERAHN, Judge

 

The employer and insurer appeal from the compensation judge=s determination that the employee=s injury was incurred in the course of employment, that the employee sustained an injury to his left eye, and that the employee was entitled to temporary total disability benefits.  The employee cross appeals from the compensation judge=s decision not to consider a claim for penalties.  We affirm the compensation judge and dismiss the cross-appeal.

 

BACKGROUND

Brian Gunderson, the employee, was employed as a landscape laborer by Mac=s Landscape Center, the employer, on June 30, 2003.  The employer has a retail store on Miller Trunk Highway in Duluth and also provides landscaping services to customers.  The employee had started working for the employer in April 2003.

 

On June 30, 2003, the employer had four employees, the employee and three co-workers, who did the landscaping work at job sites away from the employer=s premises.  Typically, the employees would meet with the employer=s owner, Patrick MacDonald, at the beginning of the work day to discuss the work to be done that day.  The employees would then go to the job site in trucks owned by the employer which were loaded with materials and tools needed at the site.  Lunch was usually eaten at the job site and the employees were expected to bring a lunch.  Toilet facilities were sometimes available at the customer=s home or employees would use the restrooms at a service station.  The trucks were fueled at service stations near the employer=s premises.

 

On June 30, 2003, the employee and his co-workers had been working at what was referred to as the Bonte project for about six weeks.  This job site was at Schultz Lake, some distance from the employer=s premises.  On that morning, the employees were told by Mr. MacDonald that they would also be working at another home at Schultz Lake.  The goal was to finish both projects by July 4.  The plan for the day was that the four employees would proceed to the new site in two trucks loaded with dirt and sod.  The dirt would be unloaded at the new job and prepared for sodding.  Mr. Gunderson would then be taken back to the Bonte site where he would work.  The employee had not had a driver=s license since 1987 and was being driven on that day by a co-worker, Luke Amundson.

 

When the trucks left the employer=s premises that morning, the truck driven by Mr.  Amundson was in the lead.  The trucks drove to a Super America station about a half mile away.  This station was one where trucks would be fueled but there was no fueling that morning.  The driver of the first truck, Mr. Amundson, testified that he needed to use the restroom and that he wanted to pick up some cigarettes and food for lunch.  The trucks then left the station and proceeded east along Martin Drive.  At the intersection of Martin Drive and Lasaque Road the truck driven by Mr. Amundson collided with another vehicle and both Mr. Amundson and his passenger, Mr. Gunderson, were injured in the collision.

 

The service station where the employees stopped was apparently not on the most direct route between the employer=s premises and the work at Schultz Lake but how far off the route the service station might be is not clear from the record.  The intersection where the collision occurred is on the most direct route, although the trucks would have approached the intersection from the south and not from the west.

 

The employee was taken by ambulance to St. Luke=s Hospital in Duluth.  He was treated there and diagnosed with 1) lacerations to the forehead, 2) contusions of the left lower chest wall, 3) sprains of the left ankle and foot, right ankle and lumbosacral spine, 4) contusion of the mid and left upper abdominal wall, and 5) abrasions, dorsum of left hand.  The employee was admitted for observation and discharged on July 4.  While in the hospital, he was treated by Dr. Joel Zamzow, an orthopedist.  The employee was provided a left ankle air cast brace and follow-up care was recommended.  In his admission physical on June 30, the employee also complained of slightly blurred vision in his left eye as though there was a foreign body in it.  No foreign body was seen in the employee=s left eye on examination.

 

The employee saw Dr. Zamzow for his orthopedic problems after he was discharged from the hospital.  He was seen on August 5, 2003, primarily for his right foot and ankle.  Dr. Zamzow recommended physical therapy and also completed a form taking the employee off work.  When the employee returned on October 28, 2003, Dr. Zamzow noted pain complaints which were consistent with posterior tibial tendinitis.  Dr. Zamzow provided a prescription for Naprosyn and kept the employee off work.  Dr. Zamzow made no further treatment recommendation, stating that there would likely be additional healing with time.

 

The employee continued to experience left eye vision difficulties and saw Dr. Mark Shanfield, an ophthalmologist, on November 12, 2003.  Dr. Shanfield recommended an MRI and also referred the employee to Dr. Howard Pomeranz at Fairview University Medical Center, identified on his letterhead as an assistant professor in ophthalmology, neurology and neurosurgery.  In his initial office visit note from the consultation on December 4, 2003, Dr. Pomeranz=s impression was of Aunexplained vision loss OS, possibly due to either traumatic optic neuropathy or other pathology involving the visual pathway.@  In a subsequent letter to the employee, dated January 13, 2004, Dr. Pomeranz  stated ADespite the normal appearance of the optic nerve your clinical exam supports the idea of traumatic injury to the left optic nerve .@

 

 The employee was evaluated on behalf of the employer and insurer for his orthopedic problems by Dr. Mark Engasser on March 9, 2004.  Dr. Engasser diagnosed a left ankle strain with minimal weakness and mild peroneal sensory loss.  Dr. Engasser concluded that the employee was not in need of any work restrictions because of the work injury, that the employee had reached MMI, and that the employee had no permanent partial disability.

 

The employee=s eye condition was evaluated by Dr. James Allen on March 19, 2004, for the employer and insurer.  Dr. Allen diagnosed left exotropia, mild left posterior subscapular cataract, and left amblyopia secondary to left exotropia.^[1]  Dr. Allen also concluded that these were congenital conditions unrelated to the employee=s motor vehicle accident, although he did state that the subscapular cataract was likely related to trauma.  Dr. Allen was not able to determine whether the trauma was from the motor vehicle accident or some other cause.

 

The employee filed a Claim Petition for workers= compensation benefits on August 5, 2003, which was heard by Compensation Judge Gregory Bonovetz on April 1, 2004.  The record closed on June 15, 2004, and the compensation judge issued his Findings and Order on August 4, 2004.  The compensation judge determined that the employee=s injuries, sustained as a result of the June 30, 2003, motor vehicle accident, arose out of and in the course of his employment.  The compensation judge found that the employee had an injury to his left eye from that occurrence, that he was entitled to temporary total disability benefits from the date of injury to February 1, 2004, and that the employee was at  maximum medical improvement from his injury.  The employer and insurer appeal the determination that the employee was in the course of his employment when injured and from the findings that the employee had a left eye injury and that the employee was entitled to temporary total disability benefits.  The employee cross appeals from the compensation judge=s determination at a pretrial that the employee=s claim for penalties would not be considered at the hearing.

 

DECISION

 

Arising out of and in the course of

 

For an employee=s personal injury to be compensable, the injury must arise out of and in the course of employment.  Minn Stat. ' 176.021 subd. 1.  AIn the course of employment@ generally refers to the question of whether the injury occurs within the time and space boundaries of employment.  Foley v. Honeywell, Inc., 488 N.W.2d 268 (Minn. 1992).  Whether an injury was in the course of employment is a question of fact for the compensation judge.  Franze v. National Delivery Serv., 49 W.C.D. 148 (W.C.C.A. 1993).  The question for this court is whether substantial evidence supports the decision of the compensation judge.  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235 (Minn. 1984).

 

While the statute refers to coverage for injuries incurred on the employer=s premises, an employee who is injured while traveling between two work sites is injured in the course of employment.  Kahn v. State, University of Minn., 289 N.W.2d 737, 32 W.C.D. 351 (Minn. 1980).  An employee who is injured when not on the most direct route between the work sites is covered by workers= compensation where no fixed route is set by the employer.  Meyer v. Royalton Oil Co., 167 Minn. 515, 208 N.W. 645 (1926).

 

The employer and insurer contend on appeal that the employee was injured while he was on a personal errand and had deviated from the business trip and that the employee=s injury should be excluded from workers= compensation coverage.  We are not persuaded.

 

We find substantial evidence to support the compensation judge=s decision that the employee=s injury was in the course of employment.  First, as we have already noted, case law does not require that the employee must be on the most direct route between work sites where no specific route is established by the employer.  There is no evidence in the present case that the employer set a route for the trucks to follow.  While a Aseverable side trip@ may take the employee out of coverage, that does not appear to be the case here.  Williams v. Hoyt Constr. Co., 306 Minn. 59, 237 N.W.2d 339, 28 W.C.D. 101 (1976).  The map of the area, introduced by the employer and insurer, does not show a significant variance in distance between what the employer and insurer refer to as the direct route and the route the employee followed.

 

Further, even if an employee=s injury is excluded from coverage while the employee is on a severable side trip, once the employee has completed the side trip and has returned to the business trip, the employee is once again covered if injured.  Williams, 306 Minn. at 68-69, 23 N.W.2d at 246, 28 W.C.D. at 111.  The motor vehicle accident here was at the intersection of Martin Road and Lasaque Drive.  The employer and insurer concede this intersection is on what they refer to as the direct route but argue that if the employees had not gone to the Super America station they would have been approaching the intersection from the south and not the west.  We find this distinction not to be significant and agree with the compensation judge that even if a deviation had occurred, it had ended by the time of the collision.

 

Finally, we conclude, as did the compensation judge, that it is significant here that the employee did not make the decision to go to the Super America station; he was a passenger in the truck.  While the employer and insurer in their brief identify the employee as a supervisor who was in charge of the other employees, that was not the evidence.  In responding to a question about Mr. Gunderson=s status, Mr. MacDonald answered: ANo, he was never put into that official title as supervisor or foreman.  He was strictly the person on the crew that had the most experience and age, so we put him just having known the most.@  We do not see how the employee could be found to have deviated from the business trip when the deviation determination was not his to make.

 

In the alternative, the employer and insurer argue that the employee was engaged in a prohibited act when injured.  An employee who is injured while performing an act specifically prohibited by the employer may be excluded from coverage.  In order for the exclusion to be found, there must be an unequivocal and specific prohibition which is clearly communicated to the employee and which has been enforced by the employer.  Otto v. Midwest of Cannon Falls, 59 W.C.D. 25 (W.C.C.A. 1999); Hassan v. Sherion Corp., 63 W.C.D. 491 (W.C.C.A. 2003).

 

We find no evidence in the record to support a finding that the employee was engaged in a prohibited act when he was injured.  There was no evidence that the employer specifically barred the route used by the employees or that the employer prohibited stopping at a service station for food or restroom breaks on their way to a job site.  The only evidence cited by the employer and insurer=s brief was the testimony by Mr. MacDonald that it was important for the employees to start the work on a timely basis.  That testimony does not rise to the level of prohibition.

 

Given the case law and the evidence in this case, we conclude the compensation judge did not err in determining that the employee=s injury was incurred in the course of his employment.

 

Extent of Injury

 

The employer and insurer argue on appeal that the compensation judge erred in finding that the employee sustained an injury to his left eye in the occurrence on June 30, 2003.  It is argued that the opinions of Dr. Pomeranz and Dr. Shanfield, upon whom the compensation judge relied, lacked adequate foundation.  Specifically, according to the employer and insurer, both Dr. Shanfield and Dr. Pomeranz were not aware that the employee was not rendered unconscious by the collision and did not have a foreign body in his left eye when seen at the hospital.  Without adequate foundation, these opinions may not serve as the basis for the compensation judge=s conclusion on this issue.  We do not agree.

 

It does not appear from the evidence that the factors identified by the employer and insurer above were of any significance in considering whether or not the left eye problems were related to the motor vehicle accident.  In his report, in which he concluded that the left eye condition was not related to the motor vehicle accident, Dr. Allen did not mention either factor in coming to his conclusion.  In his reports, Dr. Pomeranz did not state that the employee was unconscious or that he had foreign material in his eyes.  Although Dr. Shanfield=s notes have a history of unconsciousness, it is given as illustrative of the seriousness of the collision and not as a basis for finding that the left eye condition was traumatic in origin.

 

Given these considerations, we conclude that the opinions of Dr. Shanfield and Dr. Pomeranz had adequate foundation.  Grunst v. Immanuel - St. Joseph=s Hosp., 424 N.W.2d 66, 68, 40 W.C.D. 1130, 1132 (Minn. 1988).  Consideration of competing medical opinions is within the province of the compensation judge.  Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985) The compensation judge did not err in relying on the opinions of Dr. Shanfield and Dr. Pomeranz, and in concluding that the employee=s left eye condition was the result of the June 30, 2003, injury.

 

Temporary Total Disability

 

The compensation judge awarded temporary total disability benefits from June 30, 2003, to February 1, 2004.^[2]  In his memorandum, the compensation judge noted that the employee had sustained disabling injuries to both ankles on June 30, 2003, and that, as of the date of his last visit with Dr. Zamzow on October 28, 2003, the employee had not been released to return to work.  The compensation judge stated that Dr. Engasser=s independent medical examination on March 9, 2004, was the first indication that the employee could return to work.

 

On appeal, the employer and insurer argue that the compensation judge erred in awarding benefits because Dr. Engasser in March 2004 had determined that the employee=s orthopedic injuries were minor and temporary in nature.  We disagree. An opinion that the employee had no restrictions in March 2004, even if accepted, does not mandate a finding that the employee had no restrictions between July 2003 and February 2004.  The employer and insurer also argue that the employee=s claims for temporary total disability benefits should have been denied because the employee did not engage in a diligent job search.  The compensation judge accepted the opinion of Dr. Zamzow that the employee was not released to work during the applicable period.  The fact that the employee made some effort to find a job notwithstanding his medical condition does not render the compensation judge=s reliance on Dr. Zamzow=s opinion invalid.

 

Penalties

 

This matter was set for hearing on April 1, 2004, by an order from the Office of Administrative Hearings dated January 12, 2004.  On February 17, 2004, the employee=s attorney sent a letter to the attorney for the employer and insurer, advising her that the employee intended to assert a claim for penalties at the hearing and the employee subpoenaed the claims adjustor on March 30, 2004, to appear at the hearing with the file.  The employer and insurer objected to the subpoena and a telephone conference was held on the issue on March 31, 2004.  The subpoena was quashed and the compensation judge determined that the issue of penalties would not be considered at the hearing.  The employee has cross-appealed this issue.

 

No record was made of the conference and this issue was not raised at the hearing. In their responsive brief, the employer and insurer contend that they did not have sufficient notice  of the penalties claim and that this was the reason for the compensation judge=s decision. The employee does not dispute these facts. The compensation judge=s determination allows the employee to assert a subsequent claim for penalties. Given these circumstances, we cannot conclude that the compensation judge abused his discretion in refusing to consider the penalty claim at the hearing.