LUIS ROQUE SAGASTUME, Employee/Respondent, v. VIKING ACOUSTICAL CORP. and AMTRUST GRP., Employer-Insurer/Appellants, IMPERIAL PLASTICS, INC. and SFM MUT. INS. CO., Employer-Insurer/Respondents, and MINN. DEP’T OF LABOR & INDUS.,VOCATIONAL REHAB. UNIT, VOCATIONAL RESTORATION SERVS., INC., MEDICA HEALTH PLANS, UNITED HOSP., and ALLINA MED. CLINIC, Intervenors.

Viking Acoustical Corporation and AmTrust Group appeal from the compensation judge’s findings that the employee sustained work-related injuries on May 14, 2016, and June 7, 2017; that the employee gave statutory notice of injury; that the employee conducted a reasonable and diligent job search; and from the award of wage loss and medical benefits.  We affirm.

The employee began working full time for the appellant employer, Viking Acoustical Corporation (Viking), in November 2014.  He worked primarily in furniture assembly, either on an assembly line or on a packaging line.  In that job, the employee and a co-worker together lifted a variety of objects weighing from 18 pounds up to a maximum weight as much as 200 pounds or more, depending on whose testimony is credited.^[1]  The employee began a second full-time job for respondent employer Imperial Plastics (Imperial), in December 2014.  That job involved operating a plastic extrusion machine to form light plastic parts typically weighing less than 10 pounds.

The employee began to experience left shoulder pain in May 2016, with symptoms that waxed and waned over the next year.  He was seen for his left shoulder symptoms at the Allina Urgent Care Center in Burnsville on May 15, 2016, and at the Allina Health Farmington Clinic on May 23, 2016.  He was diagnosed with a left brachial plexus injury and torticollis and put on restrictions for ten days.  Viking accommodated these restrictions.

After the employee’s restrictions expired, he continued to work in both jobs.  However, he testified that he continued to have left shoulder problems which he associated with lifting large boxes at Viking.  On June 7, 2017, the employee was working in the production area for Viking with another worker in a job requiring them to lift tabletops off a conveyor belt and place them on a cart.  After a few hours performing this job, the employee had a discussion with his supervisor during a morning break.  There was contradictory testimony about the topic of the discussion.  The supervisor testified that the conversation was entirely about the employee’s desire for a pay increase, while the employee testified that he asked to be taken off the production task because his work duties were causing left arm pain.  The supervisor sent the employee to the office, where, the employee contends, he again reported that his work duties were causing left arm pain.  Viking’s owner disputed this report in his testimony.  The employee was told to return to the production area, and there was further disagreement as to whether he did so.  Shortly after this discussion took place, Viking decided to fire the employee.  Viking’s owner testified that this decision was made solely because the employee was being a troublemaker and inciting discontent among the other employees and was not due to any injury claim.  The employee’s supervisor admitted that the employee had reported an injury later that day but testified that he did so only after he was terminated.

Following termination by Viking, the employee continued to work at his other full-time job for Imperial.

The employee’s left shoulder pain continued.  He was seen on August 4, 2017, at the Allina Health clinic where he reported left shoulder pain, of two months duration, which he associated with having to lift heavy objects at work for Viking.  The doctor placed the employee on restrictions and indicated the condition was work related.  An MRI of the left shoulder on August 9, 2017, showed moderate left supraspinatus and mild left anterior infraspinatus tendinopathy and mild left subacromial subdeltoid bursitis.  The employee was subsequently treated with medications and physical therapy.  His condition improved such that he no longer had ongoing shoulder pain, but he testified that he continued to experience episodes of shoulder clicking followed by two to three hours of pain.

The employee filed a claim petition on August 9, 2017, seeking benefits based on claims of Gillette injuries to his left shoulder^[2] while working for Viking, culminating on March 14, 2016, and/or June 7, 2017.  Viking and its insurer denied primary liability.

On September 19, 2017, the employee was seen by a QRC at the Department of Labor & Industry Vocational Rehabilitation Unit for a rehabilitation consultation.  He was determined to be a qualified employee and was provided with QRC services consisting of job-seeking skills training, job development services, and job placement services, with the goal of maintaining employment with Imperial and finding additional employment due to his current wage loss.  These services continued at least until August 2018.

At Viking’s request, the employee was evaluated by Dr. Mark Friedland in November 2017.  Dr. Friedland opined that the employee has minimal left shoulder supraspinatus tendinopathy and subacromial bursitis, but that his subjective symptoms exceed objective findings and that there are signs of functional overlay.  He did not consider the employee’s condition to result from either a Gillette or specific injury associated with the employee’s work duties at Viking.  However, he opined that if a court were to conclude that the employee had been injured on or about June 7, 2017, the employee would have reached maximum medical improvement (MMI) by September 11, 2017, at which point he would have been able to perform his regular daily work activities without significant pain.  Dr. Friedland also opined that, were a court to find that the employee’s work was a cause of his condition, 75 percent of the employee’s condition would be due to his work at Imperial, and only 25 percent to the employee’s work duties for Viking.

The employee was seen on April 11, 2018, by Dr. Robert Wengler for an opinion at the request of the employee’s attorney.  Dr. Wengler diagnosed subacromial impingement on the left shoulder resulting in tendinosis of the supraspinatus tendon and a subdeltoid-subacromial bursa.  He attributed the employee’s condition to a Gillette injury from his work activities at Viking.  In his opinion, the employee might require arthroscopic subacromial decompression surgery.

Viking brought Imperial into this matter by a motion for joinder.  Imperial had the employee evaluated by Dr. Paul Wicklund on October 24, 2018.  Dr. Wicklund opined that the employee had left rotator cuff tendinitis with positive impingement signs and a possible left labral tear, and that the condition had not reached MMI and might require arthroscopic surgery.  He attributed causation solely to the employee’s work activities at Viking.

In February 2018, the employee found work through a temporary agency, where he was assigned to work for Gen Pak.  In September 2018, he was hired directly for full-time work at Gen Pak washing small plastic printing plates, which paid more than he earned working for Viking.  He also continued to work at Imperial.

At the hearing, the employee testified about the nature of his work activities for Viking and Imperial.  Viking offered testimony from its owner and from the employee’s supervisor disputing the employee’s account of the events of June 7, 2017, his testimony regarding the speed of the production line, the weight of various objects that the employee lifted, and other aspects of his job duties.

Following the hearing, the compensation judge found that the employee had sustained a Gillette injury to the left shoulder culminating on June 7, 2017, and arising out of his work at Viking.  The judge also found that the employee had provided proper notice.  The employee was awarded temporary partial disability compensation through the date he began work at Gen Pak.  His medical expenses were also awarded.  Viking and its insurer appeal from the compensation judge’s determinations on these issues.

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).

To establish a Gillette injury, an employee must “prove a causal connection between [his or] her ordinary work and ensuing disability.”^[3]  While evidence of specific work activities causing specific symptoms leading to disability may be helpful, whether an employee has sustained a Gillette injury primarily depends on medical evidence.^[4]  This determination is not solely dependent on medical testimony, however, and the compensation judge should also consider the nature and extent of the employee’s work duties in determining legal causation.  “Ultimately, it is the responsibility of the compensation judge to weigh all of the evidence in the case to decide whether the work activities caused the disability.”^[5]

The compensation judge found that the employee sustained a Gillette injury, culminating on June 7, 2017, as a result of his work for Viking.  Viking and its insurer appeal, contending there was insufficient evidence to support the finding of a Gillette injury.  They argue that the finding was inadequately supported by evidence of the frequency, extent, and duration of the employee’s job duties and point out that the judge failed to make specific findings on the precise details of the employee’s work.  We do not find this argument convincing.  In his memorandum, the judge states that he accepted the employee’s testimony regarding his work duties as credible and relied on that testimony along with the expert medical opinions of Drs. Wicklund and Wengler in concluding that the employee sustained a Gillette injury.  In Finding 1, the judge made specific findings about the employee’s work duties, resolving various disputed points of fact in favor of the job description provided by employee’s testimony.  Although somewhat general in nature, these findings, together with the medical opinions the judge adopted, are adequate to support the judge’s ultimate finding of a Gillette injury.

The appellants argue that the employee’s testimony was not credible.  Relying on their witnesses’ descriptions of the employee’s job duties rather than the employee’s testimony, they assert that the compensation judge erred in relying on the employee’s testimony, arguing that his testimony was unreliable.  The appellants’ argument is entirely based on the implicit assertion that the employee’s testimony as to such matters as the speed of the production line and the weight and frequency of lifting required in his job was “patently untrue” whenever it conflicted with the testimony of their witnesses.  It is clear from the hearing transcript that there were disagreements between the employee and Viking’s witnesses regarding various aspects of the employee’s job duties.  The compensation judge, however, accepted the employee’s testimony as credible, thereby accepting his account of his job duties over that of the appellants’ witnesses.  The “[a]ssessment of witnesses’ credibility is the unique function of the trier of fact.”^[6]  “It is not the function of a reviewing court to evaluate ‘the credibility and probative value of witness testimony and to choose different inferences from the evidence than the compensation judge.’”^[7]  This court “must give due weight to the compensation judge’s opportunity to judge the credibility of the witnesses and must uphold the findings based on conflicting evidence or evidence from which more than one inference might reasonably be drawn.”^[8]  While there were some minor inconsistencies in the employee’s testimony, they were of a nature readily resolved when considering that he was not proficient in the English language.  We further note that the testimony of Viking’s witnesses about the employee’s job was internally inconsistent in several areas and that there were points on which the testimony conflicted among the different witnesses for Viking.  On review of the testimony in this matter, we see nothing that would require us to overturn the compensation judge’s credibility determination.

The appellants also argue the opinions of the doctors on which the compensation judge relied were without adequate foundation because those doctors relied on the employee’s description of his job and they did not view a video that Viking prepared to show the employee’s job duties.  We disagree.  We have affirmed the compensation judge’s finding that the employee’s account of his job duties was credible.  In addition, an expert must be provided enough facts to form a reasonable opinion that is not based on speculation or conjecture, but need not be provided with every possible fact.^[9]  It is not necessary that an expert view video evidence where the video evidence has not been shown to be probative on the issues for which the expert’s opinion is offered.^[10]  As there was adequate foundation for the opinions of the experts relied on by the compensation judge, and the judge’s finding of a Gillette injury has substantial support in the record, we affirm.

An employee is required to give notice of a work injury to the employer unless the employer has actual knowledge of the injury.  Failure to provide timely notice may preclude a claim for workers’ compensation benefits.^[11]

The compensation judge found that the employee, during his morning break on June 7, 2017, complained of left arm pain to his supervisor, who sent the employee to the office where he then saw Carrie Tessman, Viking’s personnel representative, and discussed with her that his work duties caused left arm pain.  The judge found that the employee had provided adequate notice of the June 7, 2017, Gillette injury.  The judge’s findings were supported by the employee’s testimony, which the judge found credible.  The appellants again argue that the judge erred in accepting the employee’s testimony as credible, as it contradicted the testimony of the employee’s supervisor, who testified that the employee only reported his left shoulder pain that day after he was terminated for not returning to the machining area. Based on this argument, the appellants contend the compensation judge should have found an absence of notice.

We have thoroughly discussed the judge’s reliance on the employee’s testimony as credible in the context of the judge’s resolution of conflicting testimony about the employee’s job duties.  For the same reasons discussed there, we must affirm the judge’s reliance on the employee’s testimony in resolving the conflicting evidence regarding whether notice was given on June 7, 2017.  We note that the employee’s version of the events was also partly corroborated by a written document from the employee’s personnel file authored by Ms. Tessman, which stated, in part:

As the compensation judge’s finding on the question of notice has substantial evidentiary support in the record, we affirm.

Temporary partial disability (TPD) benefits were awarded from the date of injury on June 7, 2017, to September 10, 2018, when the employee was hired by Gen Pak and no longer had a wage loss.  The appellants contend, for several reasons, that this award was improper.  Regarding the period from the employee’s firing on the date of injury, June 7, 2017, to August 4, 2017, when he was first seen by a doctor who placed him on restrictions, they argue that the lack of formal medical restrictions precludes the award.  They also argue the employee failed to perform a reasonable and diligent job search.  While they acknowledge that the employee did have a QRC during the majority of this period, they argue that his cooperation with a QRC “does not negate the Employee’s obligation to look for alternative work to offset his claim for temporary partial disability benefits.”^[12]  They further point out that the employee’s restrictions limited only the nature of his work, and the employee could have worked as many hours as necessary in a day to regain his lost earnings.  The appellants also argue that before the employee was hired on by Gen Pak at a wage that overcame his wage loss from losing the job with Viking, he worked for Gen Pak briefly through a temporary agency and that TPD benefits should not have been awarded during this period as the employee had an income in that temporary job.

The period for which TPD benefits were awarded was the period during which the judge found that the employee had a wage loss as a result of his injury.  The judge could reasonably find that the employee’s earnings during this period were an accurate reflection of his reduced earning capacity.  Further, the employee was under restrictions for almost the entire period in dispute and was unable to work two jobs for part of this time because of pain from his left shoulder injury.  The issue of whether an employee is able to return to work without restrictions is a question of fact for the compensation judge.^[13]  Formal written restrictions are not required.  An employee’s testimony alone may constitute sufficient evidence to support a compensation judge’s finding that the employee has a disability that restricts or limits her ability to perform work.^[14]  In this case, the compensation judge considered all of the evidence in reaching his conclusion that the employee continued to have a residual disability which entitled him to TPD benefits.  The judge’s award of benefits is supported by substantial evidence, including the testimony of the employee, the nature of his pre-injury job, the medical records and opinions of his treating physicians.  We affirm.