KLEBER RAMOS, Petitioner, v. TIEFHOCH CONTRACTING, INC., UNINSURED, Employer/Appellant, and HENNEPIN FACULTY ASSOCS., Intervenor, and SPECIAL COMP. FUND.

 

WORKERS= COMPENSATION COURT OF APPEALS

AUGUST 19, 2005

 

No. WC04-338

 

HEADNOTES

 

EMPLOYMENT RELATIONSHIP - SUBSTANTIAL EVIDENCE; EVIDENCE - CREDIBILITY.  Where the judge=s decision was based almost exclusively on findings as to the credibility of the petitioner and of the purported employer, the compensation judge=s conclusion that the petitioner had been personally hired by and was an employee of the purported employer were not clearly erroneous and unsupported by substantial evidence.

 

ARISING OUT OF & IN THE COURSE OF - SUBSTANTIAL EVIDENCE; EVIDENCE - CREDIBILITY.  Where the judge accepted the petitioner=s account of his injury as credible, and where that account was reasonably supported by the testimony of a witness and consistent with the employee=s medical records, the compensation judge=s conclusion that the employee=s injuries arose out of and in the course of his employment was not clearly erroneous and unsupported by substantial evidence.

 

EVIDENCE - ADMISSION.  Where the witness had now testified post hearing in person, subject to cross-examination, and where the record had been reopened to receive that testimony, whatever might have been the hearsay nature of the prehearing statement of the witness that had originally been received into evidence over the objection of the employer was rendered harmless by the witness=s ultimate availability for cross-examination, and admission of that prehearing statement was not basis for reversal.

 

PRACTICE & PROCEDURE - REOPENING RECORD.  Where the employer did not argue that the judge had been misled by the allegedly fraudulent affidavit of the petitioner=s counsel, where a complete copy of the deposition testimony at issue was attached to that counsel=s Motion and Affidavit, where the court was fully apprised of the petitioner=s bases for requesting that the record be reopened to receive that testimony, and where the bases for the petitioner=s attorney=s allegedly fraudulent assertions, together with the witness=s explanation as to his failure to attend his earlier-noticed deposition, were fully explored at the reopened hearing, the compensation judge did not abuse her discretion or otherwise err in reopening the record to receive the deposition testimony at issue.

 

Affirmed.

 

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

Compensation Judge: Carol E. Eckersen

 

Attorneys: James E. Lindell, Lindell & Lavoie, Minneapolis, MN, for the Respondent.  Lawrence C. Miller, Minneapolis, MN, and William C. Weeding, Richfield, MN, for the Appellant.  John Baumgarth, Duluth, MN, and Sara J. Stoltman, St. Paul, MN, for the Special Compensation Fund.

 

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

Tiefhoch Contracting, Inc. appeals from the compensation judge=s findings that Kleber Ramos was an employee of that employer on April 17, 2002, and that he sustained an injury arising out of and in the course and scope of his employment.  Tiefhoch Contracting, Inc., also appeals from the judge=s evidentiary ruling admitting a witness=s out-of-court statement and from her decision to reopen the record to allow additional testimony.  We affirm.

 

BACKGROUND

 

Tiefhoch Contracting, Inc., [Tiefhoch] is a construction management company owned and operated by Azzmi Sabri [Mr. Sabri].  Mr. Sabri is the sole shareholder of the company.  On April 17, 2002, Tiefhoch had a contract with Excelsior Development, LLC, to renovate a former bakery building located at 912 East 24th Street in Minneapolis.  Excelsior Development evidently had acquired the building in 2000 and was converting it to a multi-use development.  Excelsior Development is owned by Mr. Sabri, John Bergen, Paul Jahn, and Mary Sumar, Mr. Sabri=s sister-in-law.  Mr. Sabri also has four brothers who are engaged in developing real estate in Minneapolis.  On April 17, 2002, Tiefhoch was not insured against workers= compensation liability in Minnesota.

 

Kleber Ramos is a native of Ecuador who understands a little English but does not speak English very well.  On April 17, 2002, he was thirty-three years old and was living in Minneapolis.  On that date, Mr. Ramos [the petitioner] sustained multiple injuries to his right wrist, abdominal region, and legs, which he alleges were sustained in a fall in the course of work that he was doing at the Excelsior Development bakery renovation site in Minneapolis.  He was taken by ambulance to the Hennepin County Medical Center [HCMC], and the ambulance report indicates that he was apparently working on the roof of a building when the decking collapsed, leaving him to fall about twenty feet or more.  The report indicates further that the petitioner had walked one block to where the ambulance found him at 24th Street and Chicago Avenue.  His chief complaints at the time were noted to be of a fracture to the right wrist, pain in the right lateral abdominal area, and pain in both legs.  On physical exam, the petitioner was found to have, in addition to an obvious wrist fracture, abrasions to his face and chin, to both lower legs, and to his right lateral abdominal area.

 

Patient histories at HCMC variously describe a fall from a second story roof, a fall while roofing a house, and a fall off a house.  Attending doctors ordered multiple x-rays, as well as a CT scan of the head, which proved normal, and a CT scan of the abdomen and pelvis, which showed a contusion of the posterior right kidney with an adjacent small area of hematoma.  The petitioner was subsequently treated by Dr. Thomas Varecka, who diagnosed a right comminuted distal radius fracture and performed an open reduction and internal fixation.  A splint/cast was applied, and the petitioner was discharged the following day with instructions written in both English and Spanish, restricted from working through June 4, 2002.

 

The petitioner evidently returned to work for another employer on July 22, 2002, but he eventually left Minneapolis near the end of November 2002 and moved to Newark, New Jersey, where his family lives.  In March 2003, he filed a claim petition for workers= compensation benefits, alleging that on April 17, 2002, he was employed by Tiefhoch and that the injuries he sustained on that date arose out of and in the course of his employment.  Tiefhoch denied liability for the claimed injuries, contending primarily that the petitioner was not its employee on April 17, 2002.  Hennepin Faculty Associates intervened in the matter, and the petitioner=s claims were scheduled for hearing before a compensation judge.

 

Shortly before trial on July 2, 2004, counsel for the Special Compensation Fund [the Fund] faxed a copy of a witness statement taken in August 2002 by an investigator for the Fund.  The witness, Mitchell Cook, was an employee of Erickson Heating and Air Conditioning, one of the contractors hired by Mr. Sabri to perform work at 912 East 24th Street.  Counsel for the petitioner, who had been unaware of this witness until receiving the statement from the Fund, offered Mr. Cook=s statement into evidence and requested permission for a post-trial deposition of the witness.  Counsel for Tiefhoch objected on hearsay grounds to the admission of Mr. Cook=s statement.   The compensation judge overruled Tiefhoch=s objection to the statement and granted the petitioner=s request for a post-trial deposition to take place on July 8, 2004.

 

Evidence submitted at the hearing on July 2, 2004, included the testimony of the petitioner, through an interpreter.  The petitioner testified in part that he and a friend, Pedro Garcia, had met Azzmi Sabri at a construction site and had asked about the possibility of work, Mr. Garcia, who was more adept at English, doing the talking.  He testified that Mr. Sabri had responded that he did need people and agreed to hire both of them for $7.00 an hour.  He testified that Mr. Sabri gave him his business card[1] and that he and Mr. Garcia then went to work for Mr. Sabri at the building on East 24th Street.  He described his work duties as basically doing cleanup work around the job site as ordered by Mr. Sabri or his son Omar.  He regarded Mr. Sabri and Omar Sabri as his supervisors.  He stated that Mr. Sabri=s brothers were also present at the work site and that he also took direction from them.  He testified that, on the morning of April 17, 2002, after he had worked at the job site for about a week, his assignment was to remove debris that was scattered about the roof of the building.  He stated that, in the course of that work, he picked up a sheet of plywood that was evidently covering a hole in the roof and immediately fell through the hole and that Athe sheet of plywood fell on top.@  He indicated that he thought that he fell about twenty feet onto the floor below, where pieces of metal were scattered about, suggesting that he may have lost consciousness for a couple of minutes because he did not recall much of what happened thereafter.  Mr. Garcia allegedly helped him out of the building and called for an ambulance.  The employee testified that, on the day before his injury, he had been instructed to remove the plywood from the roof.  Neither Mr. Sabri nor Omar Sabri were evidently at the job site that morning.

 

The petitioner testified further that, about three days after the accident, he brought his medical release to Mr. Sabri and asked to continue working and that Mr. Sabri would not allow him to work because of the cast on his arm.  The petitioner stated that he met Mr. Sabri again after he received the bill from the hospital and asked Mr. Sabri if he would pay the hospital bill and was told that he should sue the building because the accident happened in the building.  When asked if he believed that the person who had hired him was the same Mr. Sabri who was then seated at the opposing counsel table, the petitioner testified that he did not believe so, indicating that he believed Mr. Sabri to be older and that the man at the counsel table was one of the Sabri brothers.  The petitioner did, however, recognize Omar Sabri as Mr. Sabri=s son.

 

Testimony was also offered at hearing by Mr. Sabri himself.  He stated initially that Tiefhoch is in the business of construction management and does not actually perform the construction work itself.  He stated that he hires licensed companies, such as Erickson Heating and Air Conditioning and Rainbow Roofing, to do the work.  Mr. Sabri denied that Tiefhoch had any employees on April 17, 2002, and he denied that his son Omar had any construction oversight responsibilities.  He explained that Omar was merely involved in helping him with the paperwork and that his brothers may have visited the construction site but not during work hours.  He acknowledged that Tiefhoch did have a contract to manage the construction at 912 East 24th Street, but he stated that he did not have anyone employed to clean up the site, that, in fact, each subcontractor was responsible for cleaning up its own debris before leaving the building.  As for the alleged employee, Mr. Sabri testified that he had never met the petitioner before the morning of the hearing.  He acknowledged that he had met Mr. Garcia but that Garcia had been hired by a Mr. Eastman, a former storage tenant of the bakery building, to clean out Mr. Eastman=s belongings from the building.  Mr. Sabri testified that Mr. Eastman, an elderly man, could not oversee the project and asked Mr. Sabri if he would pay Mr. Garcia when the job was done.  Eastman evidently gave Mr. Sabri $219.00 in cash, and Mr. Sabri then wrote a personal check to Mr. Garcia for that amount.  At the conclusion of Mr. Sabri=s testimony, counsel for Tiefhoch moved for dismissal/directed verdict based on the petitioner=s inability to specifically identify Mr. Sabri, and Mr. Sabri=s testimony that he had never met the petitioner.  Tiefhoch=s motion was denied.

 

On re-direct examination, the petitioner testified he had never heard anything about Mr. Eastman.

 

Omar Sabri also testified at hearing, in part that he, too, had never met the petitioner before the morning of the hearing.  He stated that he did not participate in the construction or renovation of the bakery building in any way.  He stated that he had nothing to do with Tiefhoch and had never conveyed instructions from his father to any of the people working at the site.  Omar Sabri did testify, however, that since the bakery building was purchased in 2000 he had had occasion to be on the roof maybe thirty or forty times.  He recalled that he had been on the roof in early April 2002 and had not seen any loose sheets of plywood.  He recalled also that roofing contractor Paul Jahn had first come out to the job site in mid-March of 2002 and had submitted a bid for repairs.

 

Roofing contractor Paul Jahn also testified at hearing on July 2, 2004, in part that he inspected the roof at the building in question in the spring of 2002.  He testified that, in preparing his bid for the repair job, he had not seen any holes in the roof or any loose sheets of plywood.  Mr. Jahn could not recall specifically when he first visited the site, other than to say that it was in the spring.  He testified that Mr. Sabri did engage him to do the work and paid him by check.

 

At the close of the hearing on July 2, 2004, the judge requested, in light of the permitted post-trial deposition of Mr. Cook, that closing arguments be submitted in written form, indicating that the record would close on July 19, 2004, upon receipt of those arguments.

 

In a letter to the compensation judge on July 19, 2004, counsel for the petitioner advised the court that Mr. Cook had failed to appear for his July 8 deposition, Adespite his assurances just two days prior to the deposition that he would be present and my giving him detailed directions to my office.@  Counsel indicated to the judge that he was therefore relying upon the petitioner=s testimony and Mr. Cook=s brief recorded statement in support of the petitioner=s claim.  Subsequently, however, on August 20, 2004, and before the compensation judge issued her decision, the petitioner=s attorney filed a motion and affidavit with the court seeking to reopen the record for receipt into evidence the deposition of Mr. Cook.  In his affidavit, the petitioner=s attorney stated that efforts to locate Mr. Cook had been unsuccessful until a professional process server located him and served him with a subpoena on the evening of August 18, 2004, for a deposition the following afternoon.  Opposing counsel were apparently unavailable to attend the deposition, but, believing time to be of the essence, the petitioner=s attorney proceeded with Mr. Cook=s deposition as scheduled.  At the deposition, counsel was informed by Mr. Cook that he had fully intended to attend the scheduled July 8 deposition but, after discussing the case with Tiefhoch=s attorney on the evening prior to the deposition, had changed his mind.  The petitioner=s attorney argued in his affidavit to the court that Aone can only conclude that his refusal to testify was the product of intimidation@ attaching to his motion and affidavit a copy of Mr. Cook=s deposition testimony.  After reviewing the petitioner=s motion, the compensation judge decided to reopen the record to allow the additional testimony of Mr. Cook.

 

Mr. Cook testified at a second day of trial, on September 30, 2004.  He stated on that date that he had been working at the East 24th Street job site for about three weeks before April 17, 2002.  He indicated that he was employed by Erickson Heating and Air Conditioning and was installing a heating and air conditioning system for Mr. Sabri.  Mr. Cook testified that Mr. Sabri was the general contractor and the person in charge of the work site and that when Mr. Sabri was not around he viewed Omar Sabri as the person in charge.  Mr. Cook indicated that he had seen Omar Sabri acting in a supervisory role over the laborers, making sure that the work was getting done, and had also seen two of Mr. Sabri=s brothers at the job site.  He recalled that they would come and go but that they were there during business hours.  Mr. Cook testified further that on April 17, 2002, as he was coming up to the second floor, he saw an injured Latino man being attended to by another Latino man.  The injured man appeared to have broken his wrist and was in a great deal of pain.  He did not know the names of either of the two men but had previously seen them in the building doing cleanup work.  He indicated that he had not witnessed the accident but had assumed the man had fallen.  He testified that there was no hole in the roof above where he observed the injured man.

 

The record closed on September 30, 2004, at the conclusion of Mr. Cook=s testimony and brief remarks by counsel. In findings and order issued on November 29, 2004, the compensation judge found that the petitioner had been an employee of Tiefhoch on April 17, 2002, and had sustained an injury on that date arising out of and in the course and scope of his employment.  The judge awarded temporary total disability benefits to the petitioner for the period of April 17, 2002 to June 4, 2002, and payment of the petitioner=s medical expenses at HCMC and Hennepin Faculty Associates.  Finding Tiefhoch to be uninsured on the date of that injury, the judge ordered the Fund to make payment if the awarded sums were not paid within thirty days from the date of her order.  Tiefhoch.

 

STANDARD OF REVIEW

 

When an appeal is taken from a compensation judge=s factual findings, this court=s review on appeal is limited to a determination of whether the judge=s findings and order are Aclearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.@  Minn. Stat. ' 176.421, subd. 1(3) (1992).  If, on the other hand, the judge=s factual determinations are adequately supported by substantial evidence, and not clearly erroneous, we must affirm.  This court is not a finder of fact, and on appeal the court will not Aretry@ the factual issues which were before the lower court; thus, it is irrelevant whether different conclusions than those found by the compensation judge could also be reached on the evidence.  Substantial evidence supports the findings if, in the context of the record as a whole, they Aare 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 the evidence conflicts or more than once inference may reasonably be drawn from the evidence, the findings must 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 Foods Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).  Factfindings may not be disturbed, even though this 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 compensation judge concluded that the petitioner was an employee of Tiefhoch on April 17, 2002, and had sustained work-related injuries on that date, viewing the case primarily as a question of credibility.  On appeal, Tiefhoch contends that these findings of the judge are clearly erroneous and unsupported by substantial evidence.  Tiefhoch contends also that the judge erred in admitting into evidence, over Tiefhoch=s objection on hearsay grounds, the recorded statement of Mitchell Cook that was provided to petitioner=s counsel two days before trial, and that the judge erred in reopening the record upon what Tiefhoch contends was a false affidavit by the petitioner=s attorney.

 

1.  Credibility

 

In arriving at her determination on the issues of employment relationship and work-relatedness of the petitioner=s injuries, the judge viewed the case as a question primarily of credibility.  Tiefhoch contends that the judge, in drawing her conclusions, failed to base her findings on the entire record, that her findings were internally inconsistent, that she misstated portions of the evidence, and that she failed to give credence to the testimony of neutral witnesses.

 

a.  Employment relationship.  At the hearing, Azzmi Sabri testified that he was the sole owner of Tiefhoch contracting.  He testified also that his company had no employees and that, prior to the hearing date in this case, he had never met or talked to the petitioner.  On the other hand, the petitioner, through an interpreter, testified that he had obtained a business card from Mr. Sabri when he and Mr. Garcia were hired by Mr. Sabri to work at 912 East 24th Street, a construction site at which Mr. Sabri was the general contractor.  The petitioner testified that he was supervised at this job site by Mr. Sabri, Omar Sabri, and Mr. Sabri=s brothers.  However, when asked to identify Mr. Sabri, who was present at trial, the petitioner could not do so.  Under these facts, Tiefhoch contends, where the petitioner could not identify the person whom he has alleged hired him, and where there is no evidence that someone other than Mr. Sabri had authority to hire on behalf of Tiefhoch, there simply are no facts supporting a finding of an employer-employee relationship.

 

At the conclusion of Mr. Sabri=s testimony, counsel for Tiefhoch moved for dismissal or directed verdict.  Tiefhoch argued that, because it is Aundisputed@ that Azzmi Sabri did not hire the petitioner and because the petitioner acknowledged, by his inability to identify Mr. Sabri, that he was not hired by Mr. Sabri, the judge erred by not granting Tiefhoch=s motion.  Moreover, Tiefhoch argues, the judge=s determination that the petitioner=s failure to recognize Mr. Sabri must have been due to poor memory or mistake is wholly unsupported by the record.  We are not persuaded.

 

The compensation judge acknowledged Tiefhoch=s argument on this issue both in her findings and memorandum.  At page 6 of her memorandum the judge stated at follows:

 

Though Mr. Ramos may not have recognized Mr. Azzmi Sabri two years after his brief period of employment, Mr. Ramos= testimony was credible that he obtained a business card from Azzmi Sabri who hired him to work for Tiefhoch.  I found Mr. Ramos= testimony convincing that he was hired by Azzmi Sabri to work at the bakery construction site for $7.00 per hour.

 

The assessment of a witness=s testimony is the unique province of the trier of fact, and this court will not disturb a finding based on credibility unless clearly contrary to the evidence, Even v. Kraft, Inc., 445 N.W.2d 831, 835, 42 W.C.D. 220, 225 (Minn. 1989). The compensation judge listened to the testimony of the petitioner and was able to observe the petitioner=s demeanor in the courtroom.  Although Tiefhoch=s argument has some merit on paper, the judge is in the best position to determine credibility, and we find nothing in the record compelling us to overturn the judge=s finding of an employment relationship on grounds that the judge erred in her credibility assessment.

 

We have carefully reviewed the record and are satisfied that the judge=s credibility assessments were based on her view of the entire record.  On direct examination the petitioner testified as follows:

 

BY MR. LINDELL:

Q.        Do you recognize Mr. Sabri and his son here in the courtroom today?

A.        The son is here, but not Mr. Sabri.  His brother is here.

Q.        But you don=t see Azzmi Sabri here?

A.        No.

 

On cross-examination by Mr. Baumgarth, the following exchange took place:

 

BY MR. BAUMGARTH:

Q.        Mr. Ramos, is Azzmi Sabri, the individual that you say you met with and who hired you, present in the courtroom right now?

                                                                   *   *   *   *   *

THE WITNESS:  No, I don=t believe that gentleman is Azzmi.  I believe Azzmi is older.

 

BY MR. BAUMGARTH:

Q.        The gentleman in the dark shirt immediately to the right of [Tiefhoch=s attorney], do you know who that individual is?

A.        I believe that he is probably the son.

MR. BAUMGARTH:  Well, I want to clarify, I=m asking if he knows who that individual is.

THE WITNESS:  I believe he is the son, the young man.  It=s been awhile, and people do change after awhile.

 

BY MR. BAUMGARTH:

Q.        What causes you to believe that?

A.        It has been a long time that I have seen him.

 

Given the testimony of the petitioner, the judge=s opportunity to observe the various exchanges in the courtroom, and the judge=s opportunity to assess the credibility of all of the witnesses, we see no reason to substitute the judgment of this court for that of the compensation judge on the significance of the petitioner=s failure to identify Mr. Sabri in court.  A factual finding is clearly erroneous only where Athe 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).  That is not the case here.

 

Tiefhoch argues also that the compensation judge misstated Mr. Sabri=s testimony regarding the arrangement with Mr. Eastman.  At Finding 12, the judge referred to Mr. Eastman=s hiring of the petitioner and Mr. Sabri=s eventual payment directly to the petitioner for the work performed on behalf of Mr. Eastman.  While Tiefhoch is correct, that the alleged arrangement testified to by Mr. Sabri was between Mr. Eastman and Mr. Garcia, we do not view the judge=s misstatement of the evidence as a basis for reversing her determination that the petitioner had been hired by Tiefhoch.  Again, on this issue, the judge accepted the petitioner=s testimony as credible and convincing and determined Mr. Sabri=s testimony about Mr. Eastman to be unbelievable.  The judge specifically found that the petitioner Acredibly testified that he had not heard of Mr. Eastman.@

 

The judge=s determination that the petitioner was an employee of Tiefhoch on April 17, 2002, is affirmed.

 

b.  Arising Out of and in the Course of Employment.  Tiefhoch contends also that the compensation judge=s findings that the petitioner sustained an injury arising out of and in the course and scope of his employment is unsupported by any credible evidence.  It asserts that the judge failed to address the numerous inconsistencies in the petitioner=s testimony, ignored the testimony of the neutral witnesses who did not substantiate the petitioner=s story of a hole in the roof, and simply failed to assess the petitioner=s credibility in light of the entire record.  Tiefhoch points out that there were no witnesses to the alleged fall.  Mr. Cook testified that there were no sheets of plywood near the injured person.  Although the petitioner claims that he may have lost consciousness after the fall, he was picked up by the ambulance a block away from the claimed accident site.  And the petitioner evidently told his doctors that he fell off a house while roofing.  When the entirety of the record is considered, Tiefhoch argues, the judge=s finding that the petitioner was injured in the course of his employment must be reversed.  We are not persuaded by these arguments.

 

As we have often noted, it is not this court=s function to assess whether substantial evidence might support a factual conclusion contrary to that reached by the compensation judge; the court=s function on factual review is only to assess whether substantial evidence exists to support the conclusion actually reached by the judge.  Land v. Washington County Sheriff=s Dep=t, slip op. (W.C.C.A. Dec. 23, 2003).  See also Ludford v. Honeywell, Inc., slip op. (W.C.C.A. Mar. 17, 2004);  Moe v. Dr. Matthew A. Gahn, slip op. (W.C.C.A. Dec. 31, 2003); Redgate v. Sroga=s Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988) (Awhether [the appellate court] might have viewed the evidence differently is not the point, but whether the findings of the compensation judge are supported by evidence that a reasonable mind might accept as adequate@).  The fact that the judge did not recite all of the evidence favoring Tiefhoch=s position in her Findings and Order does not establish that that evidence was overlooked.  See Rothwell v. State, Dep=t of Natural Resources, slip op. (W.C.C.A. Dec. 6, 1993).  A compensation judge is not required to relate or discuss every piece of evidence introduced at the hearing.  Braun v. St. John=s Univ., slip op. (W.C.C.A. July 20, 1992).

 

In this case, the judge accepted the petitioner=s account of his injury as credible.  Although Mr. Cook did not witness the petitioner=s fall or know the names of the two Latino men that he observed, he did observe an injured Latino man that had apparently fallen on the morning of April 17, 2002, at 912 East 24th Street.  He testified that he had seen these same two men working at the construction site prior to the incident.  Further, he testified, he noticed that the injured man clearly was suffering from a fractured wrist.  The petitioner=s injuries, including his various bruises and abrasions, were entirely consistent with his description of the accident.  The judge found that the petitioner testified credibly that he told the doctors that he was on a roof and fell through it.  As we have already suggested, this case hinges primarily on matters of credibility, and, notwithstanding Tiefhoch=s argument to the contrary, we believe the entirety of the evidence supports the judge=s finding of an injury arising out of and in the course of employment.  Therefore we affirm.  Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.

 

2.  Evidentiary Ruling

 

An investigator for the Special Compensation Fund obtained a recorded statement of Mitchell Cook on August 9, 2002.  That statement was provided to the petitioner=s counsel two days before trial.  The statement was offered as an exhibit, and Tiefhoch objected on hearsay grounds, arguing that the witness was available and could have been subpoenaed.  The compensation judge allowed the exhibit into evidence.  On appeal, Tiefhoch contends the judge erred in admitting Mr. Cook=s statement into evidence.  Mr. Cook has now testified in person, however, and whatever might have been the hearsay nature of his prehearing statement is rendered harmless by his availability for cross-examination.  We find no substance in Tiefhoch=s appeal on this issue.

 

3.  Conduct of Hearing

 

Tiefhoch argues that the compensation judge reopened the record in this matter based on a false affidavit submitted by the petitioner=s attorney.  At the reopened trial, Mr. Cook testified that his failure to appear at his deposition scheduled for July 8, 2004, was not due to intimidation as suggested by the petitioner=s attorney in his affidavit.  Tiefhoch suggests that the compensation judge=s decision to reopen the record was based importantly on counsel=s suggestion of intimidation, arguing that the trial court improperly reopened the record Aas a result of the fraud@ of the petitioner=s attorney.  It further requests sanctions against the petitioner=s attorney in the form of costs and attorney fees for Tiefhoch=s appearance at the Aimproperly reopened trial.@  We find no merit to the argument.

 

Minn. Stat. ' 176.411, subd. 1, provides as follows:

 

Conduct of hearings and investigations.  Except as otherwise provided by this chapter, when a compensation judge makes an investigation or conducts a hearing, the compensation judge is bound neither by the common law or statutory rules of evidence nor by technical or formal rules of pleading or procedure.  Hearsay evidence which is reliable is admissible.  The investigation or hearing shall be conducted in a manner to ascertain the substantial rights of the parties.

 

Findings of fact shall be based upon relevant and material evidence only, as presented by competent witnesses, and shall comport with section 176.021.

 

This statute was intended to simplify and make flexible the procedure governing workers= compensation hearings.  Chilstrom v. Trojan Seed Co., 242 Minn. 471, 65 N.W.2d 888, 18 W.C.D. 137 (1954).  The judge=s decision to reopen the record in this case was entirely reasonable and in keeping with her statutory charge to ascertain the substantial rights of the parties.  Tiefhoch does not argue that the judge abused her discretion or that the judge was somehow misled by the affidavit of the petitioner=s counsel.  A complete copy of Mr. Cook=s deposition testimony was attached to the Motion and Affidavit, and the court was fully apprised of the petitioner=s bases for requesting that the record be reopened. The basis for the assertions made by the petitioner=s counsel in his affidavit, together with Mr. Cook=s explanation for his failure to attend his earlier-noticed deposition, were fully explored at the reopened hearing.  We find no basis for Tiefhoch=s allegations of fraud.  The judge=s decision to reopen the record allowed the judge the opportunity to assess the credibility of an important witness and gave all parties an opportunity to examine that witness.  The purpose of a workers= compensation proceeding is disclosure of the facts, and the judge=s decision to reopen the record properly advanced that purpose.  Tiefhoch=s request for sanctions is in all respects denied.

 

 


[1] The business card allegedly given to the petitioner by Mr. Sabri identifies Azzmi Sabri as an engineer for Excelsior Development, LLC.  The business address is listed as 912 East 24th Street in Minneapolis.  See Petitioner=s Exhibit A.