DAVID M. WELTER, Employee/Appellant, v. RAY N. WELTER HEATING CO. and RTW GROUP, Employer-Insurer/Respondents, and RAY N. WELTER HEATING CO. and AMERISURE COS., Employer-Insurer/Respondents, and ANESTHESIOLOGY, P.A., UNITED HEALTHCARE SERVS., BUFFALO HOSP., and ALLINA MED. CLINIC, Intervenors.

The employee appeals the compensation judge’s factual findings and evidentiary rulings in this appeal. Substantial evidence supports the judge’s factual findings. As no error was committed in the judge’s evidentiary rulings, we affirm. One exhibit accompanying a briefing in this matter is stricken as unavailable to the compensation judge and therefore not properly submitted on appeal.

The employee, David Welter, worked for the employer in the 1980s, performing sheet metal work. The employee left to perform other work in the commercial HVAC field. In 2003, the employee was convicted of felony fraud for false claims for unemployment benefits. The employee was incarcerated for that conviction on July 13, 2009, due to a parole violation. (Amerisure Exhibit 1.) The employee suffered a traumatic brain injury from a motorcycle accident in 2004 which interrupted his employment. For nine years, the employee worked as a greens keeper, cleaner, and stocker. In February 2013, the employee resumed employment as a residential HVAC installer with the employer.

On February 15, 2013, the employee sought medical care for his right wrist. The chart note indicates that the employee’s right wrist was painful, and the condition was “bothering patient before going back to work . . . .” The chart note indicated that the employee experienced more pain when using tin snips. The chart notes also stated “not considering work comp injury.” Conservative treatment, including a wrist brace, was undertaken. (Employee’s Exhibit E.)

On March 9, 2013, the employee was examined by Timothy Muratore, M.D. Dr. Muratore charted a history of “a couple of months of right hand pain.” Imaging taken at that time showed narrowing/osteoarthritis of the scaphoid-trapezium joint. Injections were performed at that joint which were 100% effective in relieving the employee’s symptoms. (Employee’s Exhibit E.)

On January 8, 2014, the employee sought care at the Mountrail County Medical Center in Stanley, North Dakota, where he was diagnosed with a moderately displaced lateral malleolus fracture of the right fibula at the ankle. The employee described the injury as twisting while coming off a ladder at work. The employee was transported to the Buffalo Hospital in Minnesota, where he underwent open reduction and internal fixation of his right ankle. The employee was kept off work while convalescing. The employee was released to sedentary work on May 7, 2014.

North Dakota Workforce Safety and Insurance (WSI) received a First Report of Injury (FROI) on January 8, 2014, signed by the employee. The claim was accepted and benefits were paid.

On July 31, 2014,the Minnesota Department of Labor and Industry (DLI) received an undated FROI which identified a right wrist work injury incurred on March 7, 2013. The insurer received the FROI on June 23, 2014. The FROI indicated that notice of the injury was given to the employer on March 7, 2013.

On September 16, 2014, WSI reversed its acceptance of the claim for the January 7, 2014, work injury. The reversal was based on evidence obtained from Jason Eckelberry, co-worker of the employee, who indicated that the employee had injured his right ankle on the night of January 6, 2014, while at or returning from a bar in Stanley, North Dakota. Mr. Eckelberry also indicated that neither he nor the employee went to the worksite on January 7, 2014.

On December 30, 2014, the employee underwent a right wrist four bone arthrodesis conducted by Mark Fischer, M.D. to address the employee’s advanced STT (scaphotrapezo-trapezoidal) joint arthritis and SLAC (scapholunate advanced collapse) in his right wrist. On October 13, 2015, the employee underwent a full right wrist fusion to address ongoing pain following the December 2014 surgery. On December 6, 2015, the employee underwent revision surgery (Darrach’s procedure) due to ulnar nonalignment.

On February 18, 2015, the employee underwent an independent medical examination (IME) conducted by Thomas J. Raih, M.D. Dr. Raih opined that the right ankle treatment that the employee received was reasonable and necessary. Regarding the right wrist, Dr. Raih opined that the employee suffered from a condition which pre-existed his work with the employer. Dr. Raih opined that the employee suffered a temporary aggravation of this pre-existing condition through the use of crutches which would resolve.

On January 13, 2016, the employee underwent an IME conducted by Stephen Meletiou, M.D. Dr. Meletiou opined that the employee suffered from a degenerative condition in his right wrist which pre-existed his work with the employer. Dr. Meletiou opined that the employee’s work for the employer did not act as a significant contributing factor to the employee’s condition, and did not constitute a work injury.

The employee filed a claim petition which came on for hearing before Compensation Judge Rolf G. Hagen on March 9, 2016. The employee claimed a Gillette-type injury to his right wrist culminating on February 15, 2013. The employer and insurer RTW disputed the nature and extent of the claimed injury and asserted a notice defense. The employee also claimed benefits for the January 7, 2014, ankle injury. The employer and insurer Amerisure claimed that the injury did not arise out of employment as it occurred on January 6, 2014, and not on the worksite.

The compensation judge heard testimony from the employee, Mr. Eckelberry, a friend of the employee, Jason Hundley, and the employee’s uncle, Joe Welter. The employee maintained that he related the condition of his right wrist to his supervisor, Joe Welter, in a conversation on March 7. 2013. Joe Welter testified that there was no conversation with the employee regarding the condition of his right wrist prior to the filing of the claim petition. Mr. Eckelberry described the employee coming home from a bar on the night of January 6, 2014, in a manner suggestive of the employee suffering some form of lower extremity injury and that there was no work performed at the jobsite on January 7, 2014. The employee testified that he had gone to the worksite alone on the morning of January 7, 2014, and suffered his ankle injury when coming off of a ladder. Mr. Hundley testified that he had come from Minnesota (via a casino in North Dakota) to view the work as a possible member of the employee’s work crew. Mr. Hundley testified that he assisted the employee by putting a ladder and toolbox on the employee’s truck as the employee was at the worksite and had an injured ankle.

The compensation judge found the testimony of Joe Welter to be credible. The judge found that the employer had no knowledge of the alleged February 15, 2013, right wrist injury until the claim petition was filed on July 3, 2014. The judge also found that the employee had not suffered a Gillette-type injury to the wrist, relying on the opinion of Dr. Meletiou. Regarding the ankle injury (including a claimed aggravation of the right wrist injury) the judge found that the employee did not suffer a work injury on January 7, 2014. The judge relied on the testimony of Mr. Eckelberry, which was found to be credible, in arriving at this conclusion. The compensation judge denied the employee’s claim. The employee appeals this denial.

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(3). 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. Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993), summarily aff’d (Minn. June 3, 1993).

The issue of notice to the employer regarding the alleged February 15, 2013, right wrist injury is purely a credibility determination under the facts of this case. There is substantial evidence in the form of Joe Welter’s testimony that there was no timely notice of that alleged injury. As the compensation judge determined that Joe Welter was credible, there is no basis for this court to conclude that notice was given regarding that alleged injury.

On appeal, the employee asserts that notice was timely under this court’s recent decision in Garcia v. Wal-Mart, No. WC15-5895 (W.C.C.A. June 29, 2016)(currently on appeal to the Minnesota Supreme Court). In Garcia, the employee was unaware that the cause of her symptoms arose out of employment and this lack of knowledge delayed the start of the employee’s obligation to notify the employer. In this matter, there is no factual basis to determine that the employee was unaware of the cause of his symptoms. To the contrary, the employee’s theory of the case was that he did know and told his supervisor of the injury in March 2013. The compensation judge found that the employee did not inform his supervisor, but this does not constitute a showing that the employee was affirmatively unaware of his condition, as was the case in Garcia.

In essence, the compensation judge determined that the employee’s description of events surrounding his ankle fracture was an invention. This court has reviewed the evidentiary record and finds no error by the compensation judge in arriving at that conclusion. That another witness testified in support of the employee’s version of events does not change the propriety of the compensation judge’s assessment. We find no basis to alter the compensation judge’s conclusions on witness credibility. See Even v. Kraft, Inc., 445 N.W.2d 831, 42 W.C.D. 220 (Minn. 1989).

In the course of the hearing, criminal conviction evidence was introduced regarding three of the witnesses who testified in the hearing. The most significant of these convictions was the employee’s benefit fraud felony conviction. The employee’s conviction evidence was raised on direct by the employee and on cross-examination regarding the 2012 gross misdemeanor conviction of another witness. The employer and Amerisure explored a 2011 felony conviction of a witness testifying on behalf of the employee on cross-examination. On appeal, the employee contends that the admission of this evidence, along with some of the testimony by Joe Welter, was prejudicial.

Minn. R. Evid. 608(b) allows convictions into evidence that comport with Minn. R. Evid. 609. In this matter, the employee’s conviction related to a fraudulent claim for benefits and therefore directly related to the employee’s credibility in making his workers’ compensation claim. As he had been in custody for that conviction within the last 10 years due to a probation violation, evidence of the conviction was not time-barred nor required any particular analysis by the compensation judge regarding its admissibility. See State v. Hoffman, 549 N.W.2d 372 (Minn. App. 1996) review denied (Minn. Aug. 6, 1996). Evidentiary rulings are generally left to the sound discretion of the compensation judge. Ziehl v. Vreeman Constr. Co., slip op., (W.C.C.A. Oct. 15, 1991). There is nothing prejudicial in the testimony complained of and nothing with sufficient weight to support vacating the compensation judge’s decision.

The employee maintains that accepting the September 16, 2014 WSI Order (Amerisure Exhibit 3) into the record is error as the document is unreliable hearsay and irrelevant. The hearsay nature of the document is asserted due to the reliance on the investigatory statements of others not called to testify. The unreliability asserted by the employee arises from the document not being a final order. The employer and Amerisure responded that the employee was interviewed as part of the investigation. The employer and Amerisure also argue that the probative value of the document outweighs any prejudice or possible confusion of the issues, citing Minn. R. Evid. 403. Further, the employer and Amerisure maintains that there has been no showing of prejudicial effect, citing Conklin v. Becker County, slip op. (W.C.C.A. Apr. 28, 2011).

The compensation judge made an explicit finding regarding the WSI Order in coming to a decision. The persons who were interviewed for the WSI Order were all named, thereby permitting them to be called to testify by the employee, if desired. The claim that the document is unreliable has no merit, as it was an official document relating to the incident at issue (akin to a police report or accident investigation report).^[1] See State v. Brown, 226 N.W.2d 747 (Minn. 1975) (presumption of accuracy and trustworthiness of official records). Under Minn. R. Evid. 803(8)(C), in civil cases the factual findings of an investigation by a government agency are not excluded as hearsay unless there is an independent demonstration of a lack of trustworthiness. As the compensation judge expressly found the hearing testimony of Mr. Eckelberry to be credible, there is an independent basis for all of the findings that the alleged January 7, 2014, injury did not arise out of employment. There is no basis for disturbing the compensation judge’s admission of the WSI Order.

Accompanying the employer and RTW’s response brief is the July 27, 2016, Findings of Fact, Conclusions of Law, and Final Order from WSI (July 27, 2016 WSI Final Order). This is offered to address the employee’s objection that the September 16, 2014, WSI Order was not a final order and was not based on an adequate record. As the Final Order was not available to the compensation judge, it cannot be considered on appeal. See Gollop v. Gollop, 389 N. W. 2d 202, 38 W.C.D. 757 (Minn. 1986). The July 27, 2016, WSI Final Order is stricken from the record on appeal as being outside of the factual record before the compensation judge.

The essential resolution of this case lies in the credibility determinations of the compensation judge. We find no basis to reverse the judge’s determinations in this case, and we affirm the judge’s findings and order in its entirety.