DANIELA R. SANDERSON, Employee/Respondent, v. INDEP. SCH. DIST. 316 and RAM MUT. INS. CO., Employer-Insurer/Appellants and MINN. DEP’T OF LABOR AND INDUS./VRU, GRAND ITASCA HOSP. & CLINIC, MINN. DEP’T OF HUMAN SERVS./BRS, AVERA ST. LUKE’S HOSP., ENCORE UNLIMITED, INC., N. PINES ORTHOPEDIC CLINIC, ITASCA MED. CARE, ORTHOPAEDIC ASSOC. OF DULUTH PA, Intervenors.

The employer and insurer appeal the compensation judge’s finding that the employee was entitled to permanent partial disability and wage loss benefits. We modify Orders 1 and 3, as outlined herein, on the issues of temporary total disability and permanent partial disability, but vacate and remand Order 2, regarding wage loss benefits. The employer and insurer also petition to vacate the judge’s award based on fraud. We conclude that the employer and insurer have not established cause to vacate the award based on fraud and we deny the petition.

Daniela Sanderson started working for ISD 316 in 2010 as a part-time paraprofessional. She claims that on February 23, 2016, after finishing her shift, she walked out of the building onto the snowy parking lot and slipped and fell, injuring both knees. The employer’s surveillance cameras captured the employee leaving the employer’s building at 12:34 p.m. and walking toward her vehicle at 12:35 p.m., but the video contained no footage of the employee’s fall. (Ex. 14.) The employee testified that she had fallen in the snow, laid there for quite some time, dusted herself off and proceeded to her car. (Petition to Vacate, Ex. C, 68, 92.) She testified that she was likely out of camera range when the fall occurred.

Thereafter, the employee drove home, called the employer to report an injury, and returned the next day to complete an accident report. The First Report of Injury described the injury as a “fall, slip or trip on ice or snow.” (Ex. A.) That day, she also treated at Northern Pines Clinic with Jeff Temple, APRN-OPA, who recorded a different version of the accident. He noted that the employee injured her knee walking “into work.” (Ex. 2A.) He described the circumstances of the injury as, “This does consist of leaving the parking lot and going into work down some stairs. Because her shoes and also the floor were wet she came down and she slipped.” Id.

Prior to the injury, the employee had a history of knee problems resulting in three knee surgeries. In 2004, she underwent a right knee chondroplasty and lateral retinacular release. In 2006, she underwent a right knee partial medial meniscectomy, and in 2011, a left knee arthroscopy. She explained that she was a gymnast for 12 years and carried three children. In 2010, it was recommended that she undergo total knee replacement surgery. However, due to her young age at the time, surgery was deferred. By February 2, 2011, the employee had “bone on bone” articulation which indicated that total knee replacement would be necessary and that the condition would not improve over time. In October 2011, she was diagnosed with “end stage” knee joint disease on the right. (Ex. J.) To alleviate the pain, her knees were injected with Synvisc and cortisone, she lost 120 pounds in 2013, and wore knee braces every day. (Petition to Vacate, Ex. C, 58.)

In addition to working for the school district, the employee operated her own salon since 2011. She estimated spending 15-25 hours week as a stylist. In order to establish her pre- and post-injury wages, the employee offered into evidence a number of business worksheets, calendars, and tax forms.

Following her February 23, 2016, injury, the employee’s medical restrictions limited her to no heavy lifting, no excessive walking, and the performance of her hair stylist work while in a sitting position. She returned to light-duty work with the employer. The employee testified that her knee pain worsened in April 2016, and in June 2016 she saw orthopedic surgeon William Schnell, M.D. Dr. Schnell’s initial notes made no reference to a fall at work. In August 2016, Dr. Schnell noted that the employee had previously “failed to mention an injury at work,” but opined that “her story of the injury that she sustained in February is a contributing factor to her knee becoming painful enough to consider knee replacement surgery.” (Ex. F.)

Dr. Schnell recommended bilateral total knee replacement surgery. He testified that he was aware of the employee’s pre-existing arthritic condition, but concluded that the work injury was a substantial contributing factor to the need for total knee replacement surgery. The employee underwent bilateral knee replacement surgery on September 1, 2016.

When the employee did not return to her job or respond to notice of the employer’s proposed intent to discharge her, her employment ended on September 28, 2016. (Ex. C.) The rehabilitation records indicated that the employee had requested a leave of absence from her employer due to the surgery, but the leave of absence was denied. (Ex. J.)

The employer and insurer retained orthopedic surgeon, Gary Wyard, M.D., to obtain an opinion regarding the causal connection between the work injury and to the employee’s bilateral total knee replacement surgery. Dr. Wyard noted that the employee had refused to allow him to examine her left knee, that she had significant functional overlay, and that she would not allow him to maneuver her on examination. He opined that the employee’s surgery was due to a long-standing osteoarthritis and comorbidity which was unrelated to the injury of February 23, 2016. He assigned a zero percent permanent partial disability rating as a result of the work injury. (Ex. 5.)

Following the surgery, the employee continued to work in her salon, and eventually found another paraprofessional job for a different school district on March 6, 2017. When the school year ended, the employee continued to work in her salon.

The employee filed a claim petition ultimately claiming temporary partial disability benefits from July 18, 2016, to September 1, 2016, and temporary total disability benefits from September 1, 2016, to March 6, 2017. The employee also claimed eight percent permanent partial disability benefits for each knee and sought payment of medical expenses. The employer and insurer denied liability, contending that the claim was a fraudulent ruse by which the employee hoped to shift the expense of her long-anticipated bilateral knee replacement surgery onto the employer.

The matter went to hearing on November 8, 2018. The compensation judge awarded temporary total disability benefits from July 18, 2016, to March 16, 2017, 10 days more than claimed by the employee. He also ordered payment for 16 percent permanent partial disability benefits under the knee permanency schedules without applying the simultaneous injury factor under Minn. Stat. § 176.105. He ordered the employer and insurer to pay for the employee’s wage loss as set forth in her tax returns. The employer and insurer appeal and petition to vacate the judge’s award on the basis of fraud.

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, sub. 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 first issue set forth by the employer and insurer in its appeal is whether the judge’s finding that the employee sustained a work injury on February 23, 2016, is supported by substantial evidence in view of the record as a whole. They argue that the finding of a fall on the date of injury is contradicted by the surveillance video and early medical records. We are not persuaded. Although the video surveillance does not show the employee falling, it was not unreasonable for the judge to accept the employee’s testimony that she fell during the interval while she was outside the range of the camera. It was also not unreasonable to give less weight to Nurse Temple’s conflicting account of the employee’s fall in February 2016. Nurse Temple treated the employee the day after the accident and recorded an injury on the floor inside the school as the employee entered the building. The employee testified that Nurse Temple had not accurately recorded the history she gave him, stating that he did not take notes during the examination that day. (T. 36.)

The employer and insurer argue that Dr. Schnell lacked the medical history necessary to offer an opinion on the causal connection between the employee’s injury and need for surgery. They cite to Dr. Schnell’s acknowledgment that he was unaware of the employee’s complete medical history of prior knee problems when he drafted his initial medical opinion. We note, however, that when Dr. Schnell was subsequently provided information about the employee’s prior medical history, he testified that the new medical history provided to him did not change his opinion on causation.

The judge accepted the employee’s testimony relating to her ongoing problems both before and since the February 23, 2016, injury as credible. Credibility is a matter within the discretion of the finder of fact, and this court generally defers to the compensation judge on issues of credibility. Even v. Kraft Inc., 445 N.W. 2d 831, 42 W.C.D. 220 (1989). Based on that testimony, the judge could reasonably conclude that, while the employee had problems with her bilateral knees prior to her work injuries, she was able to perform the physical demands of her job without restrictions until she fell in the employer’s parking lot. Since the work injury, the employee has needed extensive and intensive medical treatment, and was unable to work without accommodations for some time. As the record provides substantial support for the judge’s conclusions that the employee’s work injury was a substantial contributing factor to the employee’s wage loss, need for medical treatment, and permanent partial disability ratings, we affirm.

The second issue on appeal is whether the judge erred in failing to address all issues presented at the hearing. Specifically, the employer and insurer argue that the judge failed to make findings on the employee’s average weekly wage.

The judge ordered that the employee be compensated “as set forth in the employee’s tax returns,” but did not specify which tax records to use, and some of the records in evidence were conflicting. The employee had provided some federal tax forms to the employer and insurer during the course of discovery. She later offered into evidence federal self-employment income schedules (schedule C) for the years 2011 through 2017.

The employee’s average weekly wage was not listed as an issue by the parties at the hearing, but is nevertheless necessary to calculate the employee’s claim for wage loss benefits. Minn. Stat. § 176.011, subd. 18; Minn. Stat. § 176.101. Because such findings are required under the specific facts of this case, we vacate Order 2 and remand for a determination of the employee’s average weekly wage.

The employer and insurer also point out that Order 1 awarded temporary total disability benefits from July 18, 2016, to March 16, 2017, 10 days more than claimed by the employee. The employee agrees that this was in error and requests that this court modify Order 1 to correct the error. We modify Order 1 to award temporary total disability benefits only from July 18, 2016, to March 6, 2017, consistent with the dates claimed by the employee.

The employer and insurer also argue that the judge erred in ordering payment of permanent partial disability under the knee permanency schedules without taking into account the simultaneous injury factor under Minn. Stat. § 176.105, subd. 4(f). Again, the employee agrees and requests modification of Order 3. We modify Order 3 to reflect that the simultaneous injury factor provided by Minn. Stat. § 176.105 is to be applied to the permanent partial disability award.

Finally, we address the employer and insurer’s petition to vacate the judge’s award on the basis of fraud. Minn. Stat. § 176.461 allows this court to set aside an award for cause. Cause is limited to (1) a mutual mistake of fact; (2) newly discovered evidence; (3) fraud; or (4) a substantial change in condition since the time of the award that was clearly not anticipated and could not reasonably have been anticipated at the time of the award. To prove fraud, the petitioner must show a false representation of past or present fact which is susceptible of knowledge. The representing party must know the fact is false and intend to induce another to act upon it. The misrepresentation must be the proximate cause of damages. Bramscher v. City of Perham Police Dep’t, slip op. (W.C.C.A. Feb. 27, 1995).

Here, the employer and insurer allege fraud based on the various inconsistencies in the record, and include additional records in support of the petition to vacate. They argue that the surveillance footage failed to support the employee’s testimony and the initial chart note indicated a different version of the fall occurring on the inside of the building and not outside as the employee testified. Furthermore, they provide documentation with the employee’s deposition that she laid on the snow for “quite some time,” yet the video surveillance camera showed her subsequent to the fall with no visible snow on her clothing or boots. They also point out inconsistences in the tax returns and accounts receivable ledgers which they contend raise questions regarding the truthfulness of the employee’s testimony.

The employee testified that Nurse Temple did not take notes when she saw him the next day, and that he misstated the facts of the fall as she had related them to him. She explained that there was no snow on her because she was able to brush the snow from her clothing. She also explained that some of the tax schedules given to the employer through discovery had been practice sheets.

The judge determined that the employee was credible in her testimony. While the employer and insurer noted multiple inconsistencies in the record, we are unable to conclude that they constitute proof of a fraud sufficient to warrant a vacation of the award. We therefore, deny the employer and insurer’s petition to vacate the judge’s Findings and Order on the grounds of alleged fraud.