JANUARY 2, 2013

No. WC12-5458


EVIDENCE - ADMISSION.  Compensation judges are afforded considerable latitude in conducting evidentiary hearings, and they are trained in the law and presumed to properly weigh evidence admitted at hearing.  Absent any indication that the compensation judge actually relied upon portions of exhibits or testimony containing allegedly prejudicial or irrelevant evidence, this court will not reverse or remand findings that have substantial support in the other relevant and material evidence of record.

CAUSATION - SUBSTANTIAL EVIDENCE.  Even though the injury was not witnessed, and the employee could not corroborate the exact date of injury, substantial evidence, including medical records and the employee’s testimony, supported the compensation judge’s decision that the employee injured his low back at work as claimed.


Determined by:  Hall, J., Milun, C.J., and Stofferahn, J.
Compensation Judge:  Miriam P. Rykken

Attorneys:  Charles A. Bird, Bird, Jacobsen & Stevens, Rochester, MN, for the Respondent.  William G. Laak and Jeffrey R. Homuth, McCollum, Crowley, Moschet, Miller & Laak, Minneapolis, MN, for the Appellants.




The employer and insurer appeal from the compensation judge’s May 23, 2012, findings and order.  We affirm.


The employee, Daniel Majerus, was employed as a bus driver for Rochester City Lines at the time of his injury in June 2011.  At the time of the hearing in this matter, the employee was 45 years old.  He has a high school degree along with a vocational certificate in commercial driving and a commercial driver’s license.

The employee testified that he suffers from learning disabilities, including dyslexia, problems with focus, and memory problems.  His memory problems have increased since a head injury in 2001.

The employee also admitted to being involved in a motor vehicle accident in 1990, during which he sustained low back injuries.  He has had periodic low back pain and symptoms since that time.  He has also had several other work injuries in the past, but he testified that he has recovered from those without lasting impairment.  Recently, the employee had been treating for a vascular problem in his right lower extremity.  He maintains that the vascular problem was a cause of potential confusion relating to his symptoms around the time of the June 2011 injury.

The employee claims that he sustained an injury while driving his usual route for Rochester City Lines on or around June 30, 2011.  He testified that he stopped at the Apache Mall to pick up a passenger in a non-motorized wheelchair.  The passenger was an overweight man with one leg extended in some type of cast or brace.  The employee left his driver’s seat to assist the passenger onto the bus.  At first, the employee tried to push the passenger onto the bus, but he could not get the wheelchair onto the ramp, so he rotated to pull the passenger onto the ramp backwards.  As he was pulling the passenger onto the ramp, the employee testified that he felt a pull in his back with a “pinch” sensation that caused pain for about an hour.  His pain then went away.  Because the pain went away, the employee said he did not report an injury because he “didn’t think nothing of it and I continued on with the day.”  The employee did not write the incident down anywhere.

The employee would typically fill out “route sheets.”  These sheets had a section allowing drivers to track wheelchair passengers on their buses.  The employee testified that he sometimes forgot to write down information and keep track of wheelchair passengers when he was busy.  He testified that he was most likely to forget things when he was very busy with many passengers.  He did not note this particular wheelchair passenger on June 30, 2011, but he did note wheelchair passengers on June 14 and 17, 2011 and July 1 and 15, 2011.  He testified that he did not always record wheelchair passengers due to time limitations and the busy nature of his route.  There was no penalty if drivers did not record wheelchair passengers.

The employee testified that although his initial pain went away within an hour after the incident with the wheelchair passenger, his pain started increasing “within a few days into the following next week.”  He said his pain started increasing in his lower back, and he was also feeling a sharp pain down his right leg.  This reportedly started when the employee returned to work on a Tuesday following the July 4th weekend.  After he finished work that day, he started feeling gradually worse.

The employee said that he attempted to contact his chiropractor, David Tucker, but he did not receive a response.  The employee eventually went to see Dr. Tucker without an appointment, sometime in the second week of July 2011.  Dr. Tucker did not examine the employee, but he felt that the employee was having a vascular problem in his leg.  There was no record of this visit, but Dr. Tucker documented this information in a letter dated January 9, 2012.

The employee presented to Olmsted Medical Center on July 13, 2011, to see Dr. Carole Nistler.  The employee was there for what was reportedly an exacerbation of chronic low back pain.  The doctor referenced a long-standing history of low back pain since a motor vehicle accident in 1990.  The employee recalled having two herniated discs.  He had undergone conservative management including chiropractic care.  The employee also reported a long-standing history of opioid pain management, most recently for an unrelated condition.

The employee told Dr. Nistler that “in the last week he has been aware of increasing pain in the right lower back with radiation into the right buttock and down the back of the leg to the foot and ankle.”  There were times when his foot would become numb.  He felt the pain was worse with walking, and his chiropractor expressed concern that this might represent some type of vascular disease.  The employee also reported being a long-time smoker.  In addition, the employee reported being able to continue working in two jobs, one for City Line as a bus driver, and also an auto mechanic position for a company called Northgate Imports.  However, the employee felt there were times when he could no longer work because of increased pain in his right lower leg.  He was requesting a note for his employer indicating that there may be times where he should be allowed to go home to rest.  The employee had rested the day before his doctor visit, and he found that it seemed to resolve some of his pain symptoms.

On examination, straight leg raising was positive on the right side and negative on the left.  Dr. Nistler assessed the employee with chronic low back pain with recent exacerbation, resulting in right lumbar radicular symptoms.  The employee did not mention the wheelchair incident or any specific injury at the time of his visit with Dr. Nistler on July 13, 2011.

The employee returned to see Dr. Nistler on July 20, 2011.  The employee reported ongoing problems with his low back and radiating into the right leg.  He said he had reached a point where he was having difficulty performing his job at City Lines because it was painful to lift his right leg.  The doctor noted, “he now recalls that he did sustain an injury to his back while attempting to assist a customer on to the bus.”  The employer reported that the customer was heavy, approximately 280 pounds, and he was in a wheelchair.  The employee could not push the wheelchair up the ramp, and he had to pull the wheelchair with the customer still in the chair up the ramp.  At that time, the employee felt a sharp pain in his lower back area.  The employee “estimates the date of injury was 06/30/2011.”  The employee was being assessed with acute low back pain with bilateral sciatic symptoms.  Dr. Nistler filled out forms for the employer indicating that the employee would only be able to do sedentary work, with the hope that he might be placed in some type of dispatch position.

The employee testified that when he first left the doctor’s office on July 13, 2011, he remembered the incident in late June and was worried about reporting it to the employer.  He was afraid that the delay in reporting the injury might result in termination.  The employee said he had a similar experience with a previous employer, and he was also worried about an altercation that he had with an owner at the employer six months earlier.  The employee had brought the altercation to the attention of the union as well.  The employee was also concerned about testifying in defense of another driver that had been threatened with termination.  As such, the employee approached a union representative, Dave Gosha, for advice.  Mr. Gosha testified at the hearing in this matter, and he recalled speaking with the employee around July 14, 2011.  He told the employee to report his injury and not to worry about being terminated.

The employee approached Randy Huston with the employer on July 15, 2011.  The employee first spoke with Randy Huston, and he was referred to Pat Donahoe in order to pick up a workers’ compensation packet.  The employee testified that he also spoke with Mr. Donahoe on July 15, 2011.  The employee testified that when he spoke with Mr. Donahoe, he explained what had happened at the time of the injury.  According to the employee, “I explained that I had picked up a gentleman at Apache Mall and pulled - - felt a pinch when I was bringing the gentleman on the bus.”  The employee did not remember if he gave a specific date for the incident.  He believed that he indicated that the incident happened “towards the end of June.”

The employee said that it took some time for him to return the workers’ compensation packet.  He believed that he returned it on July 21, 2011.  He had to fill out information himself, with the help of his girlfriend, and he also needed a doctor’s signature along with additional documentation from the doctor.

The employee testified that he had chosen June 30, 2011 as the date of injury because that was the best estimate he could give for an injury date.  He did not know that he could report a less precise timeframe, and he thought he had to report a specific date.

According to the employee, when he turned in his workers’ compensation packet, he was told there was no other work for him to do at the time.  The employee had been taken off of driving for a month, but he said he knew that he could bend and do some other certain things.  Driving for long periods of time was causing him problems, including pain down his leg and in his back.  However, the employee said that other movements such as pulling down on the overhead emergency hatches and climbing up to pull those down was not a problem for him.

After dropping his workers’ compensation packet off with the employer, the employee drove his car to Northgate Imports.  He said wanted to drop it off for service because one of the headlights was not working correctly.  He testified that he then noticed Randy Huston and Pat Donahoe from the employer observing him from a car nearby.  The employee said he was merely explaining to the mechanic what was happening with the headlight and assisting the mechanic by holding a plastic shroud near the wheel well in place.  The employee said that Mr. Huston and Mr. Donahoe approached him and confronted him about what he was doing.  The employee did not feel that he was “doing anything wrong.”

After the employee reported his injury to Mr. Donahoe and Mr. Huston, they were able to retrieve a hard drive from the employee’s bus.  They did this on July 21, 2011.  The hard drive contained video footage from the employee’s bus.  The information on the hard drive only went back to June 30, 2011 because it was set to automatically record over prior recording after a certain number of days.  The video from June 30, 2011 did not show the employee assisting any passengers in wheelchairs onto his bus that day.

Mr. Huston and Donahoe also took pictures of the employee when he went to Northgate Imports on July 21, 2011.  Their photos were introduced into evidence, and they claim the employee’s actions and activities were contrary to his restrictions.  However, the employee argues that these were not contrary to his restrictions and merely showed him leaning over, something which he conceded he could do and which Dr. Nistler allowed in a letter dated August 2, 2011.

Mr. Huston and Mr. Donahoe testified that the employee had been observed limping or “gimping around” when he was at Rochester City Lines.  However, they said the employee did not show any signs of limping or giving any indication that he was in pain when he was away from the bus company at Northgate Imports on July 21, 2011.  As such, they concluded that the employee may have “falsified” his injury claim.

The employer terminated the employee shortly after the events of July 21, 2011.  The employee spoke with Mr. Gosha about union procedures for trying to get his job back.  The employee was informed that the employer was accusing him of fabricating an injury.  The employee and the employer eventually reached a “step one” agreement on August 17, 2011.  This provided that the employee needed to meet certain conditions in order to get his job back.  These conditions included a release from his doctor, correcting the medical record, undergoing recommended treatment, and obtaining a finding of a work-related injury.  This step one agreement was admitted into evidence as Exhibit C at hearing, despite the employer and insurer’s objection to its relevance.  The issue at hearing was primary liability, and the employer and insurer argued that Exhibit C was irrelevant to determining primary liability and that, if anything, it was prejudicial and inflammatory because it could potentially color the compensation judge’s determination given the fact that the employee’s ability to get his job back depended on the outcome of his workers’ compensation case.  The compensation judge indicated that she understood the concerns about potential prejudice, but she noted that she would prefer to have the agreement to review in conjunction with all of the other records in the case.  The compensation judge stated that she would “accept it for the weight that would be appropriate in terms of the workers’ compensation part of this workers’ compensation hearing.”  She also indicated that there were issues of credibility involved with the case.


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 (2012).  Substantial evidence supports the findings if, in the context of the entire record, “they are supported by evidence that a reasonable mind might accept as adequate.”  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).  Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed.  Id. at 60, 37 W.C.D. at 240.  Similarly, findings of fact should not be disturbed, even though the reviewing court might disagree with them, “unless they are clearly erroneous in the sense that they are manifestly contrary to the weight of evidence or not reasonably supported by the evidence as a whole.”  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

“[A] decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which [the Workers’ Compensation Court of Appeals] may consider de novo.”  Krovchuck v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993).


Evidentiary Issue

On appeal, the employer and insurer argue that the compensation judge committed reversible error by admitting Exhibit C, the step one agreement.  In doing so, the employer and insurer argue that Judge Rykken allowed herself to consider evidence incentivizing one particular outcome over the other, namely the fact that the employee was only able to get his job back if he obtained a favorable workers’ compensation decision from the judge.

Evidentiary rulings are generally within the sound discretion of the compensation judge.  See Cici v. Methodist Hosp., 63 W.C.D. 421, 426 (W.C.C.A. 2003).  On review, considerable latitude is given to a compensation judge with respect to the conduct of a workers’ compensation hearing under Minn. Stat. § 176.411, subd. 1, which states:

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 on relevant and material evidence only, as presented by competent witnesses, and shall comport with section 176.021.

The employer and insurer argue that the step one agreement “placed the idea in the compensation judge’s head that her decision would determine not only the Employee’s entitlement to benefits, but also the future of his career with the Employer.”  However, the compensation judge apparently did not give the step one agreement any weight, since there is no reference to that evidence in her findings of fact or memorandum.  The compensation judge briefly mentioned the fact that the employee was terminated because of the employer’s suspicion that he had falsely claimed an injury, but the compensation judge does not discuss the step one agreement at all.

The pertinent question is whether the evidence was so prejudicial as to warrant a remand or reversal.  We have noted previously that evidence that could arguably be viewed as prejudicial is not to be presumed so when the finder of fact is a compensation judge, unless the record clearly suggests that the evidence did in fact have a prejudicial effect.  See Robles v. Kelly Servs., Inc., 47 W.C.D. 591, 594 (W.C.C.A. 1992), summarily aff’d (Minn. Dec. 16, 1992).  In this case, the compensation judge did not discuss the evidence in question in her findings or memorandum, and our review of the compensation judge’s discussions with the parties at hearing and her stated rationale for her conclusions does not indicate that she was improperly influenced by exposure to the step one agreement.  Accordingly, we see no basis for a remand or reversal on this issue.

Substantial Evidence

The employer and insurer also argue that the compensation judge’s conclusion that the employee sustained a compensable injury was clearly erroneous in light of substantial evidence at the hearing.  In particular, they argue that the compensation judge misinterpreted the medical evidence when she found that the employee’s condition had “gradually worsened” for two weeks following the alleged injury.

The compensation judge actually stated that the employee noted “low back pain radiating to his right side and into his right leg, and those symptoms gradually worsened during the two weeks following his injury.”  (Emphasis added.)  The employer and insurer argue that this is an indication that the compensation judge determined that there was a two-week period of continuous increase in the employee’s symptoms.  We disagree with the employer and insurer’s interpretation given the judge’s indication that the symptoms began worsening during the two weeks after the injury.  When the employee saw Dr. Nistler on July 13, 2011, he reported that “in the last week he has been aware of increasing pain in the right lower back with radiation into the right buttock and down the back of the leg to the foot and ankle.”  Furthermore, the employee testified that although his initial pain went away within an hour of the wheelchair incident, his pain started increasing “within a few days into the following next week.”  He said his pain started increasing in his lower back, and he was also feeling a sharp pain down his right leg after finishing a shift on a Tuesday following the July 4th weekend.  He started feeling gradually worse after that time.  Thus, there is substantial evidence to support the compensation judge’s conclusion that the employee did have increasing symptoms during the two-week period after his injury on or around June 30, 2011.

The employer and insurer’s appeal ultimately comes down to their argument that the employee’s injury claim could not be corroborated.  In particular, they argue that the testimony from the employer’s representatives, the medical records, including the employee’s prior low back condition, and the lack of video or documentary evidence regarding the wheelchair passenger prevent the conclusion that the employee sustained a compensable injury on June 30, 2011, or any other date of that month.

The issue on appeal, however, is not whether evidence supports an alternative finding, but rather whether substantial evidence supports the findings that the compensation judge made.  See Russ v. SAS Inst., No. WC04-121 (W.C.C.A. July 13, 2004).  The fact that a particular claimed injury was not witnessed is a factor for the compensation judge to weigh.  Id.

As in Russ, the employee testified as to the mechanics of his injury, and that testimony was consistent with the histories taken by Dr. Nistler and even the independent medical examiner, Dr. Ghose.  The compensation judge noted the potential deficiencies raised by the employer and insurer with regard to the employee’s testimony, especially with regard to the claimed injury date.  The compensation judge also noted that this particular employee has a history of problems with focus and concentration related to a learning disability, and he continues to experience problems with his memory.  She also noted the employee’s mistaken belief that he needed to provide an exact injury date and that the employee told the union representative that the wheelchair incident took place at some time during the last week of June 2011.  The union representative stated that he was familiar with the wheelchair passenger the employee described.  The employee’s chiropractor initially felt that the employee may have had vascular issues, and, as the compensation judge noted, the employee provided a consistent history regarding the wheelchair incident to Dr. Nistler on July 20, 2011.

Ultimately, the compensation judge found the employee’s testimony regarding the injury itself to be credible, despite the fact that he may not have been able to recall the exact date of the injury.  The compensation judge did not find that the injury happened on June 30, 2011, but she used that date for reference and concluded that the injury occurred at some time around the end of June 2011.  The compensation judge weighed the evidence presented, and she noted the credibility arguments raised by the employer and insurer.  However, the compensation judge determined that although his injury was not witnessed or corroborated by video or documentary evidence, the employee’s testimony regarding the incident itself was credible, including his difficulty with recalling the exact date of injury.[1]  We conclude that the testimony presented at hearing along with the medical records, including those from Dr. Nistler, provide substantial evidence to support the compensation judge’s determination that the employee did sustain an injury as claimed.  Because substantial evidence supports the compensation judge’s conclusion that the employee sustained a compensable injury on or around June 30, 2011, we affirm.

[1] Assessment of a witness’s credibility is the unique function of the trier of fact.  Even v. Kraft, Inc., 445 N.W.2d 831, 42 W.C.D. 220 (Minn. 1989).