VICTOR VICTOR, Employee, v. SMITHWAY MOTOR XPRESS, and LIBERTY MUT. INS. CO., Employer-Insurer/Appellants, and GRAND ITASCA HOSP., MN DEP=T OF LABOR & INDUS./VOCATIONAL REHAB. UNIT, GRAND ITASCA CLINIC, and CIGNA HEALTHCARE/PRIMAX RECOVERIES, INC., Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

NOVEMBER 21, 2006

 

No. WC06-149

 

HEADNOTES

 

APPEALS - SCOPE OF REVIEW.  Upon appeal, this court is limited by its standard of review to solely consider the evidence submitted into the hearing record and therefore will not consider sworn statements submitted post-hearing.

 

NOTICE OF INJURY - SUBSTANTIAL EVIDENCE - Substantial evidence in the record  supports the compensation judge=s finding that the employee provided the employer with  timely notice of his injury, even though contrary evidence in the record could support conclusions opposite from those reached by the compensation judge.

 

ARISING OUT OF & IN THE COURSE OF.  The employee=s testimony, in combination with the correspondence and discussions the employee had with employer representatives following the injury, comprise substantial evidence supportive of the compensation judge=s finding that the employee=s injury arose out of and in the course of his employment.

 

Affirmed.

 

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

Compensation Judge: Jerome G. Arnold

 

Attorneys: Michael Aafedt and Radd Kulseth, Aafedt, Forde, Gray, Monson & Hager, Minneapolis, MN, for the Appellants.  Donald C. Erickson, Fryberger, Buchanan, Smith & Frederick, Duluth, MN, for the Respondent.

 

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The employer and insurer appeal the compensation judge=s findings that the employee=s injury arose out of and in the course of his employment and that he gave timely notice of the injury.  We affirm.

 

BACKGROUND

 

Victor Victor, the employee, worked as an over-the-road truck driver for Smithway Motor Xpress Company, the employer, which was insured for workers= compensation liability by Liberty Mutual Insurance Company, the insurer.  The employee resided in Hibbing, Minnesota, and worked out of a terminal in Cohasset, Minnesota, driving a tractor and enclosed trailer.  The employee had worked for the employer since August 2001, originally dispatched out of the employer=s Stockton, California, terminal until his transfer to the Cohasset terminal.

 

On March 2, 2004, the employee sustained an admitted low back and shoulder injury while working for the employer.  This injury was temporary, resulted in a brief period of disability from work, and resolved over the summer of 2004.  He sustained an additional injury on November 17, 2004, which is the subject of this appeal.

 

On the morning of November 17, 2004, while at home with a tractor and trailer parked in his yard, the employee received a dispatch message through his truck=s satellite communication system (QUALCOMM) assigning the employee to pick up a load for delivery.  The employee began preparing for the trip by loading and inspecting his truck.  Other necessary preparations included notifying his wife who typically accompanied him on the road trips; loading certain personal clothing and accessories into the truck; inspecting the truck; completing pre-trip paperwork; loading his trip-pack including his log books; and loading his business computer.  According to the employee, as he was loading items into his truck to prepare for departure, he fell while exiting from the driver=s side of the truck, injuring his low back.  The employee stood up and went into his house to retrieve his computer and driver materials from the basement of his house, and his right leg gave out while he was on the basement stairs.  He reported that he fell on the stairs, further injuring himself.

 

According to the employee=s testimony, he notified his supervisor, Steve Hargis, of his injury using the QUALCOMM satellite messaging system.  He also testified that he attempted to reach Mr. Hargis by telephone, leaving three telephone voice mail messages, but after receiving no response, sent an e-mail message to Mr. Hargis, advising him of his injury.  According to the employee, he received an e-mail message from Mr. Hargis, van manager for the employer, advising the employee to take the truck load and start driving, but that he responded, advising Mr. Hargis that, due to his injury, he was unable to take the load.  The record contains copies of e-mail messages that the employee contends he sent during the afternoon of November 17, 2004, including a message from the employee informing Mr. Hargis that he was scheduled to see a doctor and would forward the doctor=s note as requested.

 

Evidently the employee did not initially report his injury as being work-related.  On November 18, 2004, the employee faxed a copy of an incident report to the employer.^[1]  On that date,  the employee also spoke by telephone with Ms. Andrea Kloverdanz, the employer=s benefits coordinator, and advised her of his injury; she sent disability insurance claim forms to the employee for his and his treating doctor=s signatures.  The employee testified that he signed those claim forms because he did not believe, at that time, that his injury was covered by workers= compensation insurance, as he was not driving at the time of his injuries.  The employee also testified that on November 19, he sent an e-mail message to his dispatcher, with copies to Mr. Hargis, the human resources department, and Ms. Kloverdanz, advising that he had sustained an Aoff-duty injury@ on November 17.  Following his injury, the employee received short-term disability benefits for 50 weeks, through the employer=s insurance plan.

 

The employee did not return to work following his injury, due to his low back condition.  He received medical treatment, including physical therapy.  He was eventually diagnosed with a herniated disc and lateral recessed stenosis at the L4-5 level, and prominent degeneration of the right-sided facet joint at the L5-S1 level.  He consulted a neurosurgeon who recommended a microdiscectomy at the L4-5 level.  Although the employee was scheduled for surgery in May 2005, the employee testified that he was unable to proceed with surgery due to lack of insurance authorization.

 

On June 20, 2005, the employee filed a claim petition, seeking payment for temporary total disability benefits for two periods: March 3-10, 2004, following his earlier work injury, and also from November 17, 2004, to the present time.  The employee also sought payment of medical expenses, provision of rehabilitation services, and payment of permanent partial disability benefits.^[2]  In their answer to the employee=s claim petition, the employer and insurer denied primary liability, arguing that the employee=s injury did not arise out of nor occur in the course and scope of his employment.  They asserted that because the employee had not earlier provided notice that his November 17, 2004, injury was work-related, he had failed to comply with the notice provisions of Minn. Stat. ' 176.141, since he provided notice of his injury beyond the statutorily-imposed limit of 180 days following his injury.

 

On February 13, 2006, a hearing was held before a compensation judge.  Issues addressed at the hearing included whether the employee=s work injury of November 17, 2004, arose out of and within the scope of his employment with the employer; whether the employee provided notice of that injury to the employer as required under Minn. Stat. ' 176.141; whether the employee was entitled to payment of temporary disability benefits, medical treatment expenses and rehabilitation services as a result of his November 17, 2004, injury; and whether he was entitled to payment of temporary total disability benefits between March 3-10, 2004, as a result of his work injury of March 2, 2004.  At the hearing, the parties stipulated that the employee=s treatment was reasonable and necessary medical treatment for his low back condition.  Testimony was presented by the employee, the insurance manager for the employer, the benefits coordinator for the employer, and the QRC from the Minnesota Department of Labor and Industry=s Vocational Rehabilitation Unit who has provided rehabilitation assistance to the employee.  Extensive records were submitted into evidence, including copies of mail, facsimile and e-mail correspondence between the employee and employer, some of which are disputed on appeal; employment records; disability insurance information; medical records; and rehabilitation records.

 

Much of the hearing testimony focused on the issue of whether the employee provided notice to the employer on a timely basis.  At the hearing, the employee testified that on November 17, following his injury, he had sent and received e-mail messages from Steve Hargis, his supervisor.  The employee then offered into evidence copies of the four e-mail messages he contended he had sent to Mr. Hargis on his injury date, and testified about responses received from Mr. Hargis.  Counsel representing the employer and insurer at the hearing initially objected to the copies of these e-mail messages on the grounds of foundation, but after he questioned the employee about these e-mails, he advised the compensation judge that he did not object to the copies of the e-mail messages being admitted into evidence.

 

On March 8, 2006, the compensation judge issued his findings and order.  He found that the employee had provided adequate notice of his November 17, 2004, injury to the employer and that the injury arose out of and in the course of his employment.  Relying on the employee=s testimony and exhibits submitted into evidence, the compensation concluded that the employee had provided timely notice to the employer, and found that:

 

The information furnished by the employee to [the employee=s] supervisor, in voicemails and e-mails and faxes to [the employer] from the morning of November 17, 2004 through November 19, 2004 provided notice to the employer of his work injury and also represented such information of employee=s disability and injuries as would put a reasonable person on inquiry that employee=s disability was work related and as such, the notice requirements of Minn. Stat. ['] 176.141 have been shown to have been complied with by the employee. Similar information was provided to [the employer=s] benefit coordinator as hereinbefore written.

 

The judge also found that the employee=s November 2004 work injury permanently aggravated his pre-existing low back condition and was a substantial contributing factor in his need for low back medical treatment.  The judge found the employee to be entitled to payment of temporary total disability benefits continuing since November 17, 2004, and also concluded that he was qualified to receive rehabilitation services.

 

The employer and insurer appealed from the findings and order, disputing the findings that the employee gave timely notice of his injury and that his injury arose out of and in the course of employment.  Evidently during the pendency of the appeal, the employer sought to verify the authenticity of the e-mail messages the employee claimed to have sent to his supervisor to report his injury.  When the employer and insurer filed their appellate brief with this court, they also filed an affidavit from counsel and sworn statements provided by the employer=s information technology  manager and its safety director, along with related exhibits, summarizing the investigation conducted into its computer records.  During the course of its investigation, the employer retrieved e-mail files, sent to and from the employee, that were stored on the supervisor=s  computer.  They located other e-mail messages from the employee in the system but contended that the computer contained no record of the e-mail messages at issue (contained in Employee=s Exhibits 45 and 46)  Based on its investigation, the employer and insurer disputed the authenticity  of certain e-mail messages admitted into evidence at the hearing.

 

The employee objected to this court=s consideration of these documents as being outside the hearing record and moved to strike the documents.  This court denied the employee=s motion to strike in an order served and filed July 5, 2006, but indicated the matter would be considered with the appeal.

 

DECISION

 

Notice

 

The employer and insurer argue that the compensation judge erred in finding that the employee had provided timely notice of his injury.  They admit being told in November 2004 that the employee had been injured, but do not admit that the employee informed them that the injury was related to his work for the employer.  The employer and insurer further argue that the record contains a paucity of documentation to support the employee=s claims.  The focus of their argument on appeal is that certain e-mail messages submitted into evidence by the employee, as well as other information provided by the employee, are fraudulent and formed an inappropriate basis for the compensation judge=s conclusion that the employee provided the employer with adequate notice of his November 17, 2004, injury.

 

An employee must provide his employer with sufficient information of his injury so as to put a reasonable person on inquiry that the injury was work related.  Pojanowski v. Hart, 288 Minn. 77, 178 N.W. 2d 913, 25 W.C.D. 206 (1970).  It is not enough that the employer is aware that the employee may have sustained an injury; the employee must demonstrate that the employer had information that the injury arose from the employee=s work.  Issacson v. Minnetonka, Inc., 411 N.W.2d 865, 867, 40 W.C.D. 270 (Minn. 1987).  Generally, an employer must receive notice of an injury within thirty days of the injury or, in the alternative, within one hundred eighty days of the injury so long as the employee can show that the delay beyond thirty days was Adue to the employee=s . . . mistake, inadvertence, ignorance of fact or law, or inability, or to the fraud, misrepresentation, or deceit of the employer.@  Minn. Stat. ' 176.141.  The employer and insurer argue that they did not have notice that the employee=s injury was work-related until his claim petition was filed on July 20, 2005, approximately eight months after the injury.

 

The employee contends that he provided notice of his injury to the employer on the date of injury as well as the day after his injury.  In support of his contention, the employee submitted into evidence copies of e-mails he sent to his supervisor following his injury, and testified that he also left voice mail messages for his supervisor and sent a facsimile notice to the employer on the day of and the day after his injury.  The employer and insurer contest the authenticity of those e-mails, and assert that the employee fabricated those e-mail messages.

 

The compensation judge relied upon the employee=s testimony and exhibits submitted into evidence when concluding that the employee had provided timely notice to the employer.  As a reviewing court, the workers' compensation court of appeals has jurisdiction on appeal to determine whether the compensation judge's findings and order are in conformity with the law, supported by substantial evidence, clearly erroneous or not, or procured by fraud, coercion or other improper conduct.  Minn. Stat. ' 176.421, subd. 1; see also Louks v. Be Lane, slip op. (W.C.C.A., Sept. 1, 1994.)  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 judge=s decision.  In reviewing cases on appeal, this court is limited to examination of the transcript of the hearing and evidence submitted to and considered by the compensation judge.  See Minn. Stat. ' 176.421, subd. 1 ("in view of the entire record as submitted").  On appeal, this court may generally 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); Glasgow v. Franciscan Health Cmty, WC04-434 (W.C.C.A. May 2, 2005).

 

Although the e-mails in dispute on appeal were evidently presented by the employee for the first time at the hearing, trial counsel for the employer and insurer had the opportunity to object to those e-mail exhibits, to argue that they were fraudulent, or to request additional time to investigate their authenticity.  He addressed these e-mails when questioning the employee and  representatives from the employer, but ultimately advised the compensation judge that he did not object to their admittance into evidence.  And even though the employer and insurer requested and were granted additional time after the hearing to research a separate legal issue (dealing with the applicability of federal trucking regulations), they did not request additional time while the record remained open to research the authenticity of the disputed e-mails.

 

In addition, the issue of fraud was not raised in the employer and insurer=s notice of appeal.  The employer later investigated the computer records of the employee=s supervisor to ascertain the authenticity of the e-mail messages produced by the employee.  The employer evidently was unable to locate a record of the purported e-mail messages in its computer system; the employer and insurer provided an explanation of the computer search and investigation with their appellate brief, along with sworn statements provided by two employer representatives.  On appeal, the employer and insurer ask this court to consider this additional information.  While we are hesitant to establish a precedent for permitting litigants to reopen or retry a case by presenting additional evidence which they failed to present at the original hearing, in very rare certain circumstances this may be allowed.  See Doble v. Jesco, Inc., 514 N.W.2d 572, 50 W.C.D. 276 (Minn. 1994).  Under these particular circumstances, however, we decline to expand the record to include the documents provided by the employer and insurer on appeal and therefore grant the employee=s motion to strike the documents.

 

The employer and insurer have also referred to portions of the existing hearing record, beyond the exhibits at issue and discussed above, to support their arguments.  They  argue that there is no evidence available from sources other than the employee to support his claim that he notified the employer of the circumstances of his injury.  In response, the employee asserts that on multiple occasions within 180 days of his November 2004 injury the employer received notice that was sufficient to put the employer on inquiry notice that the injury was work-related.  According to the employee, those sources included telephone and facsimile communications to the employer following his injury.  In his brief, the employee also refers to an intake report from one of the employee=s treating physicians, dated January 11, 2005, stating that the injury was work-related and a work status slip and office notes signed by another one of the employee=s physicians on January 21, 2005, stating that the injury was work-related, although it is not entirely clear from the record when the employer received those medical reports.

 

The compensation judge found that the employee had given timely notice, and based that conclusion on various evidence in addition to the copies of the disputed e-mail messages submitted into evidence, including copies of communications with the employer=s benefits coordinator and the employee=s testimony.  There is conflicting evidence on the notice issue, and the medical record contains conflicting histories of his injury.  It is the compensation judge=s role to determine which factors are significant in a particular case and how much weight to be given to any factor.  See Bergin v. Cass Lake-Bena Sch. Dist. No. 115, No. WC05-265 (W.C.C.A. Mar. 28, 2006).  It is not the role of this court to reevaluate the evidence or substitute our judgment for that of the compensation judge.  Where evidence is conflicting or more than one inference may reasonably be drawn, the findings of the compensation judge are to be upheld.  Redgate v. Sroga=s Standard Serv., 421 N.W.2d 729, 40 W.C.D. 948 (Minn. 1988).  In addition, A[a]ssessment of witness credibility is the unique function of the factfinder.@  Tews v. Geo. A. Hormel & Co., 430 N.W.2d 178, 180, 41 W.C.D. 410, 412 (Minn. 1988).  This court must give due weight to the compensation judge=s opportunity to observe the witness and to judge his credibility.  Here, the compensation judge found the employee to be credible and so stated in his memorandum; a finding based on credibility of a witness will not be disturbed on appeal.  See Even v. Kraft, Inc., 445 N.W.2d 831, 835, 42 W.C.D. 220, 225-26 (Minn. 1989).

 

As the employer and insurer argue, contrary evidence in the record could support conclusions opposite from those reached by the compensation judge on the notice issue.  The issue before the court, however, is not whether the evidence will support a different result.  The issue on appeal is whether the factual findings are Aclearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.@  Minn. Stat. ' 176.421, subd. 1.  Substantial evidence in the record  supports the compensation judge=s finding that the employee provided the employer with  timely notice of his injury.

 

Arising out of and in the course of

 

The employer and insurer also appeal the compensation judge=s finding that the employee=s injury arose out of and in the course of his employment, arguing that the employee=s descriptions of how his injury occurred are inconsistent and that no conclusive evidence was presented to show that the employee was injured while performing work as a truck driver.

 

An injury arises out of employment when a causal connection is established between the injury and employment.  See Lange v. Minneapolis-St. Paul Metro Airport Comm=n, 257 Minn. 54, 99 N.W.2d 915, 21 W.C.D. 61 (1959).  Being in the course of employment is established by showing the injuries occurred within the time and space boundaries of employment.  See Rondeau v. Metropolitan Council, 58 W.C.D. 338 (W.C.C.A 1998).  The employee testified that he fell while loading the truck and then on his house=s basement stairs while preparing for his load.  The employer=s policies provide that an employee is considered to be Aon duty@ once he is dispatched for a driving trip.^[3]

 

The compensation judge concluded that the employee was on duty and in AReady to Roll@ (RTR) status as of the time he fell while loading items into his truck.  The judge also concluded that the employee=s RTR status did not change when he went inside his home and fell down the stairs while in the process of retrieving personal items, computer and paperwork needed for his driving trip.  The compensation judge found that all of the employee=s activities at the time of his injuries Awere necessary for services to be performed for his employer or for the employee=s comfort and convenience while performing services for the employer.@  See Scheppman v. T & E Services, Inc., 287 Minn. 183, 177 N.W.2d 306, 25 W.C.D. 138 (1970); Penke v. Everbloom Underglass, slip op. (W.C.C.A. Dec. 28, 1984); and Hill v. Terrazzo Machine & Supply Co., 279 Minn. 428, 157 N.W.2d 374, 24 W.C.D. 511 (1968).

 

Again, assessment of witness credibility is the function of the factfinder.  Tews, 430 N.W.2d at 180, 41 W.C.D. at 412.  Here, the compensation judge accepted the employee=s description of the circumstances surrounding his injury, and accepted the veracity of the documentation of various communications between the employer and employee following his injury.  We acknowledge that the evidence offered at the hearing is subject to differing interpretations, but we cannot conclude that the compensation judge=s analysis of the facts or his conclusions are unsupported by substantial evidence.  The employee=s testimony, in combination with the correspondence and discussions the employee had with employer representatives following the injury, comprise substantial evidence supportive of the compensation judge=s finding that the employee=s injury arose out of and in the course of his employment.  We therefore affirm that finding.

 

Penalties Claim

 

The employee requests payment of penalties under Minn. Stat. ' 176.225, subds. 1 and 5, for delay in payment of temporary total disability benefits awarded between March 3 and 10, 2004.  Although that issue was listed on the employee=s claim petition at the hearing, the issue was not addressed at the hearing, and therefore we will not address that claim on appeal.  That claim should be addressed separately by the Office of Administrative Hearings.