The employer and insurer appeal from the compensation judge’s determination that the employee sustained an injury as a result of a fall on July 11, 2012, and that “the evidence fails to show that the employee’s intoxication was the proximate cause of his 7/11/2012 work injury.”  The compensation judge also determined that “The preponderance of the evidence shows that the intervenors are entitled to reimbursement for any treatment rendered through 8/14/2012.”  We affirm the compensation judge’s determinations that the employee sustained a work-related injury on July 11, 2012, and that intoxication was not the proximate cause of that injury, but we remand for further consideration with regard to the reasonableness, necessity, and causal relationship of the treatment provided by the intervenors between July 11, 2012, and August 14, 2012.

The employee, James Bitterman, started working for Safe Way Bus Company, Inc., the employer herein, in March 2009.  He worked at a satellite maintenance garage doing various bus maintenance duties, repair work, Department of Transportation inspections, fabrication, and bodywork.  The employee usually worked alone at his garage location.

The employee claims to have sustained an injury while working at the employer on July 11, 2012.  The evening before, July 10, 2012, the employee and his wife celebrated their anniversary with friends.  At the hearing in this matter, the employee admitted that he had 12 to 15 beers on the evening of July 10, 2012 between 5:00 and 11:30 p.m.  On cross-examination, counsel for the employer and insurer pointed out some potential inconsistencies in the employee’s testimony, including his deposition testimony indicating that he only had eight to ten beers on July 10, 2012, and records from a Regions Hospital chemical dependency evaluation conducted within a few days of the injury, which indicated that the employee reported having six to eight beers on July 10, 2012.  The employee did not recall these apparently inconsistent statements, and he ultimately testified that 12 would be the most accurate count for the number of beers that he had on July 10, 2012.  The employee said he stopped drinking around 11:30 p.m. on July 10, 2012, and he said he fell asleep shortly after 1:00 a.m. on July 11, 2012.  He said that he was “buzzed,” but he said he was not “falling down or whatever, I was functioning perfect.”  He did not consider himself intoxicated when he stopped drinking on July 10, 2012.

The employee testified that he usually drank about six to eight beers, on average, every day.  He said he has been doing that for years.  The employee estimated that he could probably drink a case of beer, and he stated, “then I know I am probably intoxicated.”

On July 11, 2012, the employee testified that he woke up a little after 5:30 a.m.  He denied any difficulties getting out of bed, and he said he did not have a hangover.  He said he felt fine and did not feel intoxicated.     The employee went to work and punched in around 7:50 a.m.  He checked in with a dispatcher at the main shop location, Stephen Jordan, who was also the employee’s manager at the time, and then he proceeded to the nearby maintenance garage as usual.  The employee testified that he ate a Jimmy Dean sausage sandwich around 10:00 a.m.  He denied drinking any alcohol at work that morning.  However, he said he did drink water.  The employee went home for lunch around 12:30 p.m.  He denied drinking or eating anything at home.  The employee returned to the worksite around 1:00 p.m.  The employee testified that he did not have any problems doing his job from 9:00 a.m. until 1:00 p.m. on the date of injury.

The employee testified that his injury occurred at approximately 2:00 p.m.  He said he was nearly finished working with the back section of a bus, and he wanted to inspect the cowl, which is located in the front of the bus between the windshield and hood area.  He said he was standing on what he described as “a two-step stool with a bar that comes up and around the top . . . there are no - - no braces or whatever on that stool which locks it into, you know, into place.”  The employee testified that as he was looking at the cowl, his left foot was on the tire and his right foot was on the stool/ladder.  He said that as he was getting back onto the stool/ladder, it collapsed, and he fell.  The employee said he believed the ladder collapsing caused him to fall.

The employee was cross-examined with regard to his deposition testimony.  During his deposition, the employee had indicated that he had stepped wrong coming off of the tire to get onto the ladder.  However, at hearing, he said that his statement in the deposition was wrong because the ladder was actually collapsing at the time of the fall.

The employee testified that he fell backward and hit his head “really, really” hard.  The employee testified that he knew he was unconscious for “a little bit,” but he did not know how long.  The employee did not call 911 because he did not have his phone with him that day.  The employee said that his glasses had been knocked off his head, but he was able to find them.  He said he could not lift himself up.  His daughter lived a few blocks away from the garage location, and he knew that his wife was at his daughter’s house.  Therefore, the employee said that he decided to drive to his daughter’s house.  While he was driving, he said that he had “somewhat kind of blurred vision.”

In an unappealed finding, the compensation judge noted the following:

Shortly after the employee’s injury, he was diagnosed with cirrhosis of the liver.  He did not know that he had that condition before the injury.  The employee denied drinking at all since July 11, 2012.

The employee followed up with Dr. Phillip Weber on July 30, 2012.  The employee reported falling approximately six feet off of a ladder.  MRI scans showed an old T1 compression fracture along with some spinal stenosis at C3-4, with possible cord swelling as a result of the injury.  The employee reported constant numbness into his hands and feet, but he said this was not a new symptom.  The employee was requesting a neck collar because his pain was increasing by the end of the day.  Doctor Weber diagnosed the employee as status post fall with concussion and possible contusion to the cervical spine, history of alcohol abuse and possible cirrhosis, compression fracture at T1 old versus new, and insomnia and tremor likely due to the employee’s alcohol cessation.  The employee was to remain off work for an additional three to four weeks.

On August 14, 2012, the employee was seen at HealthPartners by Dr. Matthew Kang.  Doctor Kang noted a history of trauma related to the employee’s fall.  He noted cervical stenosis at C3-4 with Hoffman’s sign and a concurrence of left shoulder problems.  Doctor Kang recommended a C3-4 epidural and possible fusion if the epidural failed.

The employee underwent epidural injections at the left C3-4 level on September 20, 2012, and October 17, 2012.  He returned to see Dr. Kang on October 30, 2012.  The employee reported ongoing complaints of neck and left shoulder pain.  He also reported buzzing in his ear, and Dr. Kang noted that the employee reportedly felt this was the result of a traumatic brain injury.  Doctor Kang recommended that the employee undergo a posterior C3-4 fusion and decompression given the degree of disc degeneration.  Doctor Kang wrote a letter indicating that the employee had considerable conservative care, including two injections, which were unsuccessful.

On November 7, 2012, Dr. Thomas Raih saw the employee for an independent medical examination at the employer and insurer’s request.  Doctor Raih diagnosed the employee with pre-existing cervical, thoracic, and lumbar disc disease.  He opined that on July 11, 2012, the employee suffered a temporary aggravation of his pre-existing cervical, thoracic, and lumbar degenerative conditions, but he said that there was no evidence of any new features.  Doctor Raih opined that the employee’s aggravations would have resolved by August 14, 2012.  Doctor Raih also felt that the employee would have reached maximum medical improvement as of August 14, 2012.  Doctor Raih felt that the employee would need ongoing restrictions, similar to Dr. Kang and Dr. Weber’s restrictions, but Dr. Raih opined that those restrictions were not related to the work injury.

Doctor Kang also opined that the treatment on July 11, 2012, and the radiographs of July 12 and July 14, 2012, were related to the fall.  However, he felt all other treatment was related to the employee’s alcohol withdrawal.

On March 11, 2013, Dr. Kang wrote a letter indicating that the employee had neck and left shoulder pain.  He felt that the pain occurring at the C3-4 level was unusual for degenerative disease and more likely the result of trauma.  He noted that while it was impossible to prove that the fall caused the injury, the fact that the employee had no symptoms before the fall and ongoing symptoms after reasonably attributed the ongoing symptoms to the fall.

The employee continued to treat, and he was seen by Dr. Joseph Kalugdan and other doctors through the HealthPartners system.  On August 16, 2012, the employee denied any additional headaches, blurring of vision, double vision, chest pain, or shortness of breath.  The employee noted no additional subjective complaints.  Doctor Kalugdan indicated that the employee’s symptoms had improved since his release from the hospital.  Neurological testing was normal, and the employee had full range of motion with his neck.  Doctor Kalugdan recommended a retest to reevaluate the employee’s liver function.

This case came on for hearing before the compensation judge.  The employee testified, and he also presented testimony from his manager, Mr. Stephen Jordan, in the form of a post-hearing deposition.  The employer and insurer presented testimony from a forensic toxicologist, Glenn George Hardin, at the hearing in this matter.  The employer and insurer also presented testimony from Ms. Jane Stiles-Wahoske, one of the company’s owners.

Mr. Hardin testified that the employee’s blood alcohol level at the time of the injury would have been between 0.25 and 0.28.  Mr. Hardin indicated that impairment of liver function would affect the rate of elimination of alcohol from the bloodstream.  He indicated that people who are long-term chronic drinkers actually have a higher elimination rate.  However, there was no evidence of anyone eliminating alcohol at a rate less than 0.01, even for individuals that may have a damaged liver.  The toxicologist indicated that he would consider the employee’s blood alcohol content to be at a very high level, and he opined that the employee was intoxicated at the time of his injury.

Ms. Stiles-Wahoske produced photos of the garage, and testified that there were inconsistencies in the employee’s recollection of the fall itself.  For example, she stated that the stool/ladder was not where he said it was after the fall, and she said there was no indication that any work had been done near the front of the bus.

Both Ms. Stiles-Wahoske and Mr. Jordan indicated that there was no evidence that the employee was impaired on the morning of July 11, 2012.

The compensation judge determined that the preponderance of the evidence did show that the employee suffered a temporary injury to his cervical, thoracic, and lumbar spine as a result of his fall in July 2012.  However, he felt that the temporary injuries had resolved as of August 14, 2012.  He also determined that the preponderance of the evidence failed to show that the employee’s intoxication was a proximate cause of his July 2012 work injury.  As such, the employee was entitled to temporary total disability benefits from July 12, 2012, through August 14, 2012.  The compensation judge also determined that the intervenors were entitled to reimbursement for any treatment rendered through August 14, 2012, but any treatment rendered thereafter was not causally related to the July 11, 2012, incident.

In reviewing cases 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.  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, “[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).  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.”  Id.

The employer and insurer argue that “substantial evidence does not support a finding of an injury arising out of Mr. Bitterman’s employment on July 11, 2012.”  The employee has the burden of proof in establishing entitlement to compensation.  See Haggerty v. Pro Staff Personnel Servs., 72 W.C.D. 321, 326 (W.C.C.A. 2012) (citing Minn. Stat. § 176.021, subd. 1).  “Meeting that burden is accomplished by producing a preponderance of the evidence on the disputed issue,” and a preponderance of the evidence means the “evidence produced in substantiation of a fact which, when weighed against the evidence opposing the fact, has more convincing force and greater probability of truth.”  Id. at 326-27 (citing Minn. Stat. § 176.021, subd. 1a).  However, “in applying the substantial evidence standard, where the 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 . . . if the compensation judge’s findings are supported by evidence that a reasonable mind might accept as adequate.”  Hengemuhle, 358 N.W.2d at 60, 37 W.C.D. at 240.

Although this court is required to look at all the evidence in performing its review function, it must give due weight to the compensation judge’s opportunity to judge the credibility of witnesses and must uphold the findings based on conflicting evidence or evidence from which more than one inference might reasonably be drawn.  Even v. Kraft, Inc., 445 N.W.2d 831, 834, 42 W.C.D. 220, 225 (Minn. 1989) (citing Hengemuhle, 358 N.W.2d 54, 37 W.C.D. 235 and Gibberd by Gibberd v. Control Data Corp., 424 N.W.2d 776, 779 (Minn. 1988)).  Assessment of witness credibility is the unique function of the trier of fact.  See Brennan v. Joseph G. Brennan, M.D., P.A., 425 N.W.2d 837, 41 W.C.D. 79 (Minn. 1988).

The employer and insurer argue that the employee is claiming “an unwitnessed fall supported only by his inconsistent and non-credible testimony.”  For example, they point out inconsistencies regarding the amount that the employee drank the night before his July 2012 injury.  In some of the medical records, the employee initially said he drank only six to eight beers on the day before his July 2012 injury, at his deposition, he admitted to drinking eight to ten beers, and at hearing, he admitted to having as many as 15 beers.

The employer and insurer also raise alleged inconsistencies surrounding the July 2012 injury itself.  For example, they argue that the employee testified that he was so weak he could not lift himself up off the floor after his fall, but he also testified that he was able to throw the ladder against the wall.  The employer and insurer also point to the testimony from Ms. Stiles-Wahoske and the examination that the employer’s representatives did after the fall, arguing that there was no indication of work on the front of the bus, as the employee had testified, and the ladder was not where the employee claimed to have thrown it.

In addition, the employer and insurer argue that the medical records, including the ambulance records, show that the employee attributed his fall to a pre-existing ankle injury and not to a ladder collapsing.  They also argue that the medical evidence did not provide any objective evidence of a fall, his initial diagnoses related to alcohol use and withdrawal, and the initial records did not indicate any signs of trauma.

However, the issues and inconsistencies raised by the employer and insurer on appeal were raised before the compensation judge at hearing.  In his memorandum of law, the compensation judge acknowledged that “the employer and insurer have raised questions as to whether the fall itself actually happened,” but he determined that any questions were based on “only conjecture to indicate that the fall did not happen as the employee described.”  The compensation judge chose to credit the employee’s testimony with regard to the fall itself, and he rejected the employer and insurer’s position that the preponderance of the evidence established that the employee did not fall as he alleged.  The compensation judge also noted other evidence in the record, including Dr. Raih’s acknowledgement that the employee sustained a temporary injury as a result of the fall, and the compensation judge specifically stated that he was not persuaded by the photographs and testimony presented by Ms. Stiles-Wahoske to question the employee’s testimony regarding the occurrence of the fall itself.

It is not the role of this court to evaluate the credibility and probative value of witness testimony and choose different inferences from the evidence than the compensation judge.  See Krotzer v. Browning-Ferris/Woodlake Sanitation Serv., 459 N.W.2d 509, 512-13, 43 W.C.D. 254, 260-61 (Minn. 1990); Redgate v. Sroga’s Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988).  Even where there are potential conflicts between witness testimony and medical records, those conflicts go to the credibility of the witness, and this court has held repeatedly that considering the credibility of a witness is left to the compensation judge.  See Haggerty, 72 W.C.D. at 329 (citations omitted).  Ultimately, the compensation judge weighed the potential inconsistencies and credibility issues raised by the employer and insurer.  He determined that the employee testified credibly, and he rejected the employer and insurer’s version of events.  Because there is substantial evidence to support the compensation judge’s determination that the employee did sustain a temporary injury on July 11, 2012, we affirm.

The employer and insurer argue that it is not disputed whether the employee was intoxicated at the time of his fall, and they argue that the employee had a blood alcohol level of 0.25 to 0.28.  As such, they argue that the circumstantial evidence surrounding the accident can only lead to the inference that intoxication was a proximate cause of the fall.  Because the compensation judge found that intoxication was not a proximate cause of the employee’s injury, the employer and insurer argue that the compensation judge essentially set forth a rule that a party must “establish intoxication by blood alcohol level, expert testimony, impairment demonstrated by the employee prior to the accident, a history of substance use at work, and a history of alcohol related performance issues.”

Pursuant to Minnesota Statutes section 176.021, subdivision 1,

Based on the medical record and other evidence presented, including the expert opinions of the toxicologist, Mr. Hardin, the employer and insurer argue that the employee was extremely intoxicated to a level in which his balance, coordination, and decision making were altered, which caused the employee to fall.  However, as the compensation judge explained in his memorandum, “the employee acknowledges the amount of alcohol that was measured in his system,” but he testified that “despite that measurement he was functioning fine and proceeding through a normal day without a problem.”  The compensation judge correctly determined that there was no evidence presented to the contrary.  In fact, the employee’s supervisor, Mr. Jordan, indicated that he saw no signs of impairment on the date of injury, and representatives of the employer, Mr. Jordan and Ms. Stiles-Wahoske, indicated that they had never seen the employee impaired while at work, nor had they found any indication that he consumed alcohol during work hours on the work premises, including the date of injury.  The compensation judge also noted in his findings the October 23, 2012, letter that Dr. Kalugdan wrote indicating that, in his opinion, the employee’s blood alcohol level could still be elevated following a night of drinking due to his poor alcohol filtration ability.  Thus, the compensation judge found that there was no indication of any impairment issues, and he determined that intoxication was not the proximate cause of the injury.

We acknowledge that there was evidence presented in support of the employer and insurer’s position that the employee may have been intoxicated at the time of his injury, including expert evidence from Mr. Hardin.  However, the statute and case law make it clear that it is not enough for intoxication to be a contributory cause of an employee’s injury; intoxication must be the proximate cause.  See Thake v. Backhauls. Inc., 345 N.W.2d 745, 748-49, 36 W.C.D. 565, 570 (Minn. 1984).  Individuals have different tolerances for alcohol and may react differently to alcohol despite the measured level of alcohol in their system.  See Manthey, 306 N.W.2d at 547, 33 W.C.D. at 420.  Although forensic evidence has been deemed an essential requirement for proving intoxication, the employee’s blood alcohol level is not necessarily determinative.  See Kowalik v. Martinson Constr., 64 W.C.D. 507, 517 (W.C.C.A. 2004), summarily aff’d (Minn. Oct. 27, 2004).  The compensation judge may consider other evidence such as observations from witnesses, the employee’s actions prior to the injury, and the employee’s tolerance for alcohol.  Id.  See also Manthey, 306 N.W.2d at 547, 33 W.C.D. at 420.  Even “uncontroverted” medical or expert opinion “is not necessarily conclusive upon the trier of fact,” particularly where, as here, there is other testimony and evidence to consider.  Ewer, 68 W.C.D. at 126 (citations omitted).

In reaching his determination here, the compensation judge did not establish a new legal standard, as the employer and insurer argue.  Rather, he considered the evidence presented and determined that although the employee may have been intoxicated to some extent, the employer and insurer had not carried their burden of proving that the employee’s intoxication was the proximate cause of the July 2012 injury.  Proximate cause is a high legal standard that is difficult to prove, as the caselaw has shown repeatedly.^[1]  It is not the role of this court to choose different inferences from the evidence than the compensation judge.  Krotzer, 459 N.W.2d at 512-13, 43 W.C.D. at 260-61; Redgate, 421 N.W.2d at 734, 40 W.C.D. at 957.  Because substantial evidence supports the compensation judge’s conclusion that the employee’s intoxication was not the proximate cause of the employee’s temporary injury, we affirm.

The employer and insurer argue that the compensation judge erred in ordering them to pay the entire intervention interest for all medical expenses for treatment from July 11, 2012, through August 14, 2012.  The employer and insurer argue that there are a number of treatments included during the period of time between July 11, 2012, and August 13, 2012, for alcohol-related diagnoses, which are unrelated to the employee’s injury of July 11, 2012.  They also point to Dr. Raih’s medical report, in which he opined that much of the treatment at Regions Hospital after the alleged injury related to alcohol withdrawal, with the only relevant treatment being the evaluation on July 11, 2012, and the radiographs taken on July 12, 2012, and July 14, 2012.  As such, the employer and insurer seek a remand to determine which portions of the intervention interests, if any, are causally related to the employee’s physical injuries sustained on July 11, 2012.

“All questions of fact and law submitted to a compensation judge at the hearing shall be disposed of” pursuant to Minn. Stat. § 176.371.  The findings and order indicate that the issues presented included “If there was a work injury on 7/11/2012 is the medical treatment received by the employee reasonable, necessary and causally related to the work injury?”  The employer and insurer also argued, at hearing, that much of the initial treatment related to alcohol usage and withdrawal and not to the employee’s July 2012 injury.

The compensation judge found that the intervenors were entitled to reimbursement for “any treatment rendered through 8/14/2012.”  He explained in his memorandum that the employee failed to show that his symptoms beyond August 14, 2012, were the result of his fall and that “he is not entitled to the benefits requested in his claim petition beyond 8/14/2012.”  As such, the compensation judge, at least implicitly, was considering all of the benefits at issue generally.  The compensation judge did not indicate whether he had considered whether each of the treatments rendered before August 14, 2012, were or were not reasonable, necessary, or causally related to the July 11, 2012, injury.  Therefore, we remand the case for further findings regarding the reasonableness, necessity, and causal relationship of the treatment provided between the July 2012 injury and August 14, 2012.^[2]