SEPTEMBER 30, 2014

No. WC14-5712


EVIDENCE - CREDIBILITY.  Substantial evidence in the form of credible testimony by the employee provides substantial support for the compensation judge’s determination as to the nature and extent of the work injury.


Determined by:  Stofferahn, J., Hall, J., and Milun, C.J.
Compensation Judge:  Cheryl LeClair-Sommer

Attorneys:  Allen R. Webb and Christopher Middlebrook, Christopher Middlebrook & Assocs., Savage, MN, for the Respondent.  Kathryn Hipp Carlson, Hipp Carlson, Long Lake, MN, for the Appellants.




The employer and insurer appeal from the compensation judge’s findings that the employee’s work injury of October 28, 2011, was an injury to the neck, upper back, and right shoulder and was ongoing through the date of hearing.  We affirm.


Daniel Shaw had an injury on the job on October 28, 2011, when he was working for SuperValu.  He had been employed at SuperValu for more than ten years and was a Warehouse Selector Worker.  In this assignment, he filled orders in the warehouse by taking product off shelves and placing them on a pallet which was on a motorized dolly.

Mr. Shaw was injured when he took a cardboard case of beef weighing 83 pounds and began to place it on a pallet.  The pallet was almost full, and the employee had to reach overhead with the case to put it on top of the pallet.  Mr. Shaw was standing on “tippy toes” with his arms stretched over his head holding the case when it began to fall apart.  He kept trying to hold the case together and place it on the pallet.  As he did so, he had immediate “bad” pain in his upper right shoulder and the right side of his neck.

Mr. Shaw reported this incident immediately to his supervisor and he was taken for triage and drug screening to Medcor, a facility on the employer’s premises.  From there, he was taken to Groves WorkReady, another facility on the employer’s “campus.”  Groves WorkReady is under contract with SuperValu to provide “health and wellness” services to SuperValu employees.  At Groves WorkReady, Mr. Shaw saw Kyle Mahlum, a physical therapist employed there.

Mr. Shaw testified that after performing some range-of-motion testing, Mr. Mahlum massaged the shoulder area with his hands, ran his elbow down the spine, and then did “some kind of CPRish compressions” on the middle of his back.  As he did so, Mr. Shaw testified that he felt “some kind of popping” followed by pain in the middle of his neck.  Mr. Mahlum admitted using his hands to press on the employee’s back, but denied any injury occurred.

Mr. Shaw was assigned temporary alternate work by Mr. Mahlum, and records show that he made four more visits to Groves WorkReady, the last being on November 10, 2011.  Mr. Mahlum indicated at that time that Mr. Shaw was discharged from further visits because the employee had no symptoms.  Mr. Shaw testified, however, that he still had symptoms in his neck, upper back, and right shoulder, but had decided he did not want to deal with Groves WorkReady any longer.  He stated that despite his symptoms, he had returned to his regular job after three or four days of light duty.

After about six months of continued symptoms, Mr. Shaw went back to Groves WorkReady and requested a visit with a medical doctor.  He was referred to Dr. Loren Vorlicky at Twin Cities Orthopedics.  Mr. Shaw was seen by Dr. Vorlicky on May 23, 2012.  He gave Dr. Vorlicky the same history that he provided in his testimony at hearing.  Dr. Vorlicky recommended a cervical MRI scan that was done on June 5, 2012.

The MRI was read as showing a “small central disc protrusion” at C3-4 “which does not result in any stenosis or nerve root displacement.”  Upon review, Dr. Vorlicky commented that “I am unable to explain, in an objective fashion, the patient’s subjective complaints.”  The employee was released to regular duties by Dr. Vorlicky.

Because he was still having symptoms and Dr. Vorlicky had advised him that workers’ compensation was not responsible for his continued symptoms, Mr. Shaw decided to see a doctor covered by his own group health plan.  On June 20, 2012, he consulted Dr. Douglas Browman at Browman Chiropractic.  Dr. Browman found limited active range of motion of the cervical spine and noted that cervical compression produced right cervical thoracic pain.  Dr. Browman provided chiropractic treatment for 11 visits through August 29, 2012.  Mr. Shaw continued to work his regular job at SuperValu while seeing Dr. Browman.

Because he was continuing to experience neck and upper back symptoms, Mr. Shaw consulted a general practitioner at Park Nicollet.  He was referred to Physicians Neck and Back Clinic, seeing Dr. Thomas Balfanz there on August 23, 2013.  Mr. Shaw advised Dr. Balfanz that he was injured trying to catch a heavy box while he was working.  He told Dr. Balfanz that he had right arm pain and numbness as well as pain between his shoulder blades.  Decreased range of motion in the neck was found on examination. Dr. Balfanz diagnosed “nonspecific” cervical and thoracic pain and recommended a rehabilitation program.  Mr. Shaw participated in 12 sessions of physical therapy and on recheck in October 2013, Dr. Balfanz found objective and subjective improvement.

The employee filed a medical request seeking payment of his medical treatment after June 20, 2012.  The claims were ultimately heard by Compensation Judge Cheryl LeClair-Sommer on February 13, 2014.  The employer and insurer admitted a work injury to the shoulder occurred on October 28, 2011, but denied any injury of the cervical spine and claimed the treatment at issue was not related to any work injury.

The compensation judge found the employee sustained an injury to his neck, upper back, and right shoulder that was ongoing through the date of hearing.  Medical treatment at HealthPartners, Browman Chiropractic, Physicians Neck and Back Clinic, and Park Nicollet was found to be related to the work injury and was reasonable.  The employer and insurer were ordered to pay outstanding bills and to reimburse the employee’s group health insurer.  The employer and insurer have appealed the compensation judge’s decision.


The employer and insurer have appealed the compensation judge’s findings that the work injury of October 28, 2011, was an injury to the neck, upper back, and right shoulder that was ongoing through the date of hearing.  They contend that this finding is not supported by substantial evidence.  Specifically, the appellants argue that the compensation judge erred in finding the employee’s testimony to be reliable when it contradicted the “contemporaneous medical records.”  We disagree.

Conflicts in submitted evidence are inherent in a contested workers’ compensation hearing.  It is the function of the compensation judge to consider the evidence presented and to make findings based upon the evidence that the compensation judge determines to be more persuasive.  The compensation judge here specifically found the testimony of Mr. Shaw to be more persuasive than the testimony of Mr. Mahlum and the chart notes he wrote.

The appellants point to no specific reason why Mr. Shaw’s testimony should have been disregarded by the compensation judge other than the testimony conflicted with that of Mr. Mahlum.  We note Mr. Shaw is a long-time employee of SuperValu.  The history he provided to health care providers as to the origin of his symptoms has been consistent and his reported symptoms have been consistent with the diagnosis provided by these providers.  In reviewing the decision of a compensation judge, this court is to “give due weight to the opportunity of the compensation judge to evaluate the credibility of witnesses appearing before the judge.”  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).  We have concluded in a number of decisions that determinations of credibility are uniquely within the province of the compensation judge.  Baker v. T. Maxwells, Inc., No. WC09-5003 (W.C.C.A. Feb. 8, 2010); McLafferty v. RS Eden, No. WC07-218 (W.C.C.A. Feb. 4, 2008); Perez v. Arby’s Restaurant Group, WC11-5273 (W.C.C.A. Sept. 12, 2011).

We find no reason here to disregard the compensation judge’s determination of credibility and no basis for reversing the compensation judge’s findings.  The decision of the compensation judge is affirmed.