MARCH 26, 2018

No. WC17-6106

CAUSATION – SUBSTANTIAL EVIDENCE. Where the employee did not raise the issue of misinterpretation of material testimony by the court-appointed interpreter at the hearing, the employee was able to adequately describe her work activities to the judge, and medical evidence indicates that the employee’s work injury was temporary, substantial evidence supports the compensation judge’s denial of benefits.

    Determined by:
  1. Deborah K. Sundquist, Judge
  2. David A. Stofferahn, Judge
  3. Gary M. Hall, Judge

Compensation Judge: Danny P. Kelly

Attorneys: Ruth M. Harvey, Harvey & Carpenter, Mankato, Minnesota, for the Appellant. William G. Laak, McCollum, Crowley, Moschet, Miller & Laak, Ltd., Minneapolis, Minnesota, for the Respondents.




The employee, who speaks Spanish, appeals the compensation judge’s denial of workers’ compensation benefits, claiming that the court-appointed interpreter misinterpreted material testimony related to the mechanism of her work injury. Where the employee did not raise the issue of misinterpretation at the hearing, the employee was able to adequately describe her work activities to the judge, and medical evidence supports the compensation judge’s finding that the employee’s injury was temporary, we affirm.


Maria Perez, the employee, was born in 1973 in Guatemala where she attended school through the third grade. She arrived in Worthington, Minnesota, in 1998 speaking no English. In 2011, she began working for the employer, Swift Pork Company/JBS USA LLC, on the kill floor using both electric and non-electric knives to remove ears, skin, and meat from pigs’ heads, also called “pate.”

To perform her job, the employee, who stands about four foot, eleven inches tall and is right-handed, would reach up to pull down an electric knife which she held during each two hour rotation. She testified that at times, the knife was not sharp and she strained to cut pieces. She testified that she had to cut nine to ten ears per minute and that the pigs’ heads weighed between six to eight pounds. A plant supervisor contradicted the employee’s assessment of the job, testifying that the employee would only cut four to five pieces a minute and the maximum weight of a pigs’ head was two to two and one-half pounds. According to the employer’s job description, the job required reaching overhead and at shoulder level on an occasional basis. (Ex. 9.) It also required pushing, pulling, pinching, and fine motor activity on an occasional basis, and constant grasping.

Before March 9, 2016, the employee had not suffered from shoulder pain nor had she sought care with a doctor or with the employer’s on-site nurse. On March 24, 2016, the employee reported to the on-site nurse, complaining of right shoulder pain caused from her job beginning on March 9, 2016. On examination, she had full range of motion. She was given bio freeze, massage, and Iprin. The next day, she returned to the on-site nurse. She was treated with heat, massage, and medication and continued performing her job. Treatment was repeated on March 25, 29, 30, 31, April 1, 2, 4, 5, 6, 7, and 11. At each examination, where range of motion was recorded, it was described as a full range of motion. The employee was eventually referred by the employer to a medical clinic. On the employer’s referral form, the employee claimed she hurt her right shoulder using a knife which was not sharp, putting more pressure on her arm to do the job. (Ex. 4.)

The employee saw Charles O. Dike, M.D., on April 15, 2016, who diagnosed her with right shoulder pain, recommended physical therapy, naproxen, and restricted her to no lifting over 20 pounds for one month. (Id.) Upon returning to see Dr. Dike in May 2016, she received restrictions of no repetitive movement of the right arm for one month, with no more than six repetitions of the same movement per hour with the right arm. At each visit, Dr. Dike noted that range of motion of the shoulder was full and/or normal.

An MRI scan on July 15, 2016, showed a SLAP tear involving the long head of the biceps tendon, supraspinatus and infraspinatus tendinosis with mild inflammatory changes throughout the infraspinatus muscle, and moderate degenerative changes of the acromioclavicular joint. (Ex. C5.)

In August 2016, the employee saw Jeffrey Nipper, M.D. for an independent medical examination (IME). In a narrative report, Dr. Nipper reported that the employee’s physical examination of the right shoulder was normal with full range of motion. (Ex. 1, dated August 22, 2016). Dr. Nipper opined that the employee showed no clinical manifestations of any musculoskeletal dysfunction, only MRI evidence. He concluded that the employee was clinically normal, she had a temporary strain of a pre-existing pathoanatomy, was at maximum medical improvement, and required no restrictions. Dr. Nipper also stated that treatment was reasonable for the temporary strain through May 15, 2016.

Following receipt of Dr. Nipper’s report, the employer offered the employee’s pre-injury job to her. The employee did not accept the position (T. at 57-59), and was ultimately placed on medical leave.

The employee continued to treat for her right shoulder. She underwent a second MRI of the right shoulder in March 2017. The MRI showed a high-grade partial rotator cuff tear and SLAP tear. (Ex. C1.) Christopher J. Rierson, D.O., who examined the employee, noted that the employee had decreased active and passive range of motion secondary to pain. He discussed possible surgical options, including a right shoulder arthroscopy with a rotator cuff repair, biceps tenodesis, and a subacromial decompression.

The employee sought payment of wage loss benefits, medical benefits, including payment for shoulder surgery, and vocational rehabilitation benefits. The matter came before Compensation Judge Danny P. Kelly on May 31, 2017. Because the employee speaks Spanish, a court-appointed interpreter translated the English spoken by the judge, witnesses, and attorneys into Spanish, and vice versa. Nine days after the hearing, the employee’s attorney wrote to the employer’s attorney indicating that the employee had contacted her and was “very concerned” about the English and Spanish translations. (Appellant’s Brief, Ex. 4.) The employee complained that she had trouble understanding the interpreter, she had difficulty hearing her, and the interpreter did not translate everything. The employee’s attorney did not bring this matter to the compensation judge’s attention.

The compensation judge denied the employee’s claim for benefits, finding that the employee had failed to establish by a preponderance of the evidence that the employee was entitled to the benefits claimed. The compensation judge adopted Dr. Nipper’s opinion in finding that the employee’s work injury was temporary and had resolved by May 15, 2016. The employee appealed and obtained the opinion of Sebastian Mesa, a court-certified interpreter in the state of Minnesota for the Spanish language. Mr. Mesa reviewed the written transcript and an audio recording of the hearing used for court reporter’s transcription. (Id., Ex. 2.) He noted a number of misinterpretations. (Id., Ex. 3.)


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 employee seeks a new hearing based on her claim that the services of the court- appointed interpreter were inadequate, insufficient, and resulted in incorrectly interpreted material testimony. Because the court did not appoint a “court certified”[1] interpreter, the employee argues that she did not get a full and fair hearing. She maintains that she lost confidence in the interpreter as the interpreter discouraged her from asking questions for clarification of the questions posed by the attorneys. Furthermore, the employee argues that the interpreter misinterpreted the employee’s testimony to such an extent as to affect the employee’s claims in a material way. Specifically, the employee testified in Spanish that she had to stand on a step stool and that her work was very repetitive and was performed at a high level. According to Mr. Mesa’s translation, the court-appointed interpreter failed to include any reference to standing on a step stool to reach the meat with her right arm. Because Dr. Nipper appears to base his causation opinion on the employee working at waist to chest level, the employee argues that his opinion lacks foundation and the judge erred in adopting it.

It is a policy in Minnesota, pursuant to Minn. Stat. §§ 546.43, subd. 1, and 611.30, to provide accurate interpretation of court proceedings so that non-English speakers and those disabled in communication are afforded equal access to justice. Minnesota provides protections for persons disabled in communication who are litigants or witnesses. A person disabled in communication includes one who “because of difficulty in speaking or comprehending the English language, is unable to fully understand the proceedings . . . or . . . to obtain due process.” Minn. Stat. § 546.42.

At the hearing, the employee made no objection nor raised any concern that she had lost confidence in the interpreter. We have previously held that an issue which was not raised at the hearing cannot be raised upon appeal. Troester v. Drapery Servs. of Austin, 49 W.C.D. 74, 78 (W.C.C.A. 1993). However, we also acknowledge the difficulty in making such an objection for a witness with a third grade education, speaking Spanish, at a complex hearing.

We recognize the importance of a witness’s testimony being correctly interpreted. Yet, equally important is the judge’s ability to observe the witness. See Even v. Kraft, Inc., 445 N.W.2d 831, 834-35, 42 W.C.D. 220, 225-26 (Minn. 1989). Here, the record reflects that when the interpreter was translating part of the testimony regarding the height of the work activities, the employee showed the judge how she performed her job. The employee testified:

Q. Okay, so you were using your left hand to reach across and pull it – pull the – the – it would be the pate meat into the bucket. Correct?
A. The right. The right.
Q. You’d use the right hand?
A. Yes.
Q. Okay. So you would – you would reach to your right and pull the pate meat into the bucket?
A. Yes.
Q. Okay. And that’s still – and I’m standing up – but was that still in front of you but just with some right to left movement?
A. Can I show you?
Q. Please.
A. Here comes the line. So the ear, and there were some heavy pieces, a lot of repetition, and that’s what affected the shoulder.[2]

The employee continued to testify regarding the job tasks.

Q. Okay. Now, the job that you talked about, the rotation that you talked about with pulling the meat, can you describe that slowly and describe it one more time, please.
A. Pulling meat. Okay. I was standing up –
Q. Slowly, please.
A. – and the line is like this (indicating).
Q. Okay.
A. And then the piece comes like this (indicating) and then I had to pull it with the hand and then I had the knife here. There was a lot of repetition, there was a lot of repetition and then the same thing is what affected the shoulder.
Q. Okay. So you – so the meat would come – the meat would come and was it at waist height?
A. It was like this (indicating).
Q. Like the table there?
A. Yes.
Q. And is the table, then, about at your waist height or a little bit below your waist height?
A. It was higher.
Q. A little higher? About the height of the table, though, you said. Correct?
A. No. But higher than the table.
Q. Okay. Show us if you would, please, with the – show the Judge, if you would please, the height it was in front of you. Could you stand up, please.
A. Yes. (indicating) so the job that I’m doing, the one that he just mentioned, I had – I was getting the meat and then the other hand with the knife. And with all the repetition my arm started to hurt. That’s one job.
Q. Okay. When the meat – how high was the conveyer. How high was it in front of you?
A. I’m telling you I was saying that it was taller than the table, a little bit more, and I had to stand up to pull the meat.[3]
Q. Okay. And then you would – you would cut it with your right hand in front of you?
A. Yes.[4]

The transcript indicates that the employee was able to describe her work activities to the judge. Other than misinterpreting part of the employee’s testimony regarding the level at which the employee performed her work and that she used a step stool and reached to grab meat, the interpreter appears to have accurately interpreted the employee’s testimony. While the misinterpretation of the manner in which the employee performed her job may be a material component of determining whether her work activities caused her right shoulder injury, it is not dispositive in this matter. The mechanism of injury does not appear to be the basis for the judge’s denial. The bases for the denial appear to be the employee’s normal findings on examination each time she sought treatment in 2016 and other medical evidence.

In reviewing Mr. Mesa’s interpretation, the trial transcript, and the medical evidence, we cannot conclude that the judge’s finding was “clearly erroneous . . . [or] 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). The record supports the compensation judge’s finding. There is a paucity of medical evidence establishing that the employee’s claim that her work activities caused a rotator cuff tear, need for surgery, and resulting wage loss. There is, however, substantial evidence that supports Dr. Nipper’s conclusions. It was on Dr. Nipper’s conclusions the judge relied in denying the employee’s claim. Dr. Nipper observed on examination that the employee’s right shoulder range of motion was full and normal. The same finding was recorded each time the employee visited the on-site nurse. It was also reported by Dr. Dike in the initial medical examination of April 15, 2016, and all of Dr. Dike’s subsequent examinations. The same normal range of motion was also observed by Travis R. Liddell, M.D., in June 2016.

The record provides ample support that employee’s right shoulder examination was normal up to the time she refused to return to full-duty work. Substantial evidence supports the compensation judge’s finding that the employee’s work injury was temporary and had resolved. We, therefore, affirm the compensation judge’s denial of benefits.

[1] The employee argues that the court-appointed interpreter in this case was not a certified court interpreter. She cites district court general rules of practice, Rule 8.02, which directs district courts to appoint only a certified court interpreter who is listed on a statewide roster. If a certified interpreter is not available after the court has made “diligent efforts,” then a non-certified interpreter may be used. Only after the court has exhausted a search for a certified and then a non-certified interpreter may the court use a non-certified interpreter who is not listed on the roster. The employee maintains that the interpreter used in this case was not only non-certified, but also not on the roster as a non-certified interpreter. In response, the employer and insurer argue that the interpreter was on the roster as a non-certified interpreter. There is no indication in the record that the employee objected to the appointment of the interpreter in this case on this basis at the hearing. Therefore, we will not address this issue.

[2] T. 84. Mr. Mesa indicates that there was a misinterpretation of this line and that it should have been interpreted to read, “Here comes the line, but it had to be up higher, and stretch my hand out to grab the piece and put it on the line. And some of the pieces that come along are very heavy, a lot of repetition, and that’s what started affecting the shoulder.” Appellant’s brief, Ex. 3, at 84.

[3] T. 87. Mr. Mesa indicates that the employee’s answer here was also misinterpreted. He indicated that it should have been interpreted as, “Yes. I’m telling you, it’s a little taller than the table. I had to place a stepping stool, so I could reach the meat.” Appellant’s brief, Ex. B, at 87.

[4] T. 85-87.