MELKAM KINDE, Employee/Appellant, v. HEALTHEAST/FAIRVIEW HEALTH SERVS. and SUBSIDIARIES, Self-Insured Employer/Respondent.

The employee appeals the Findings and Order of the compensation judge, alleging fraud on the part of the self-insured employer.  The employee also petitions to vacate the Findings and Order.  We affirm the compensation judge’s Findings and Order and deny the petition to vacate.

The employee, Melkam Kinde, began working for the self-insured employer, HealthEast Maplewood Clinic, as a phlebotomist and lab processor in 2015.  As a phlebotomist, the employee would draw blood from patients, walking the floor from room to room.  Once in a patient’s room, if the patient had the lights on low, the employee would turn up the lights, so she could properly read all the necessary information to complete the task.  The employee would verify a wristband on the patient to confirm the patient’s date and birthday and read for the accuracy of orders.  After drawing the blood and labeling the blood sample, she would take it to the lab.

As a lab processor, the employee processed samples in the lab room.  The room was kept very bright, so that lab workers were comfortable reading patients’ names and other information on paperwork or vials.  Sometimes the print on various labels was small because the vials were small.  The lab work also involved use of a computer.  The employee testified that the employer told her that they cannot reduce the lighting in the lab, because it will make it too difficult for other lab workers to do their job.

On September 26, 2018, the employee was delivering fluids of a patient to a processor when she slipped, fell, and struck her head on the floor.  The day after the injury, the employee’s family doctor checked her vision, and recommended that the employee see a chiropractor.  The chiropractor recommended that the employee see an eye specialist and a traumatic brain injury specialist.  The chiropractor also took the employee off work due to head and vision issues.  The employee gave a copy of this work restriction to her employer.  The employee began to receive temporary total disability (TTD) benefits.

The employee continued to suffer from headaches, blurry vision, and pain in her lower back, neck, and shoulder.  The employee’s greatest difficulty was with headaches and her vision, with lighting affecting both symptoms.  Her primary treating medical provider, Certified Nurse Practitioner Gwen Kosevich, kept the employee off of work due to her symptoms.  Therapy was prescribed, but the records showed she missed several appointments and her therapy was eventually cancelled due to her absenteeism.

CNP Kosevich advised the employee on more than one occasion to try to return to work gradually.  The employee refused because she felt that she could not work due to the bright lights in patient rooms and in the lab.  She also claimed the employer would not allow her to work wearing sunglasses in the lab, as it would create contamination issues if she touched her sunglasses, raising them, in order to use a microscope.  CNP Kosevich therefore continued the employee’s “no work” restrictions.

Marty VonDrasek, the employer’s occupational health and safety manager at the time of the employee’s work injury, testified that the employer seeks to bring injured workers back to work under almost any restriction.  If the employer cannot find a job for an injured employee in the employee’s own department, they will try to find work for such an employee in a different department.  It is also the employer’s policy to require that an injured employee provide a fitness-for-duty/work-ability form from the employee’s treating physician before the employee is permitted to return to work.  The employee was aware of this policy, and understood that each time she went to see a doctor, she was required to get documentation from the doctor regarding her restrictions and ability to work and to submit it to the employer.

Dr. Paul Wicklund examined the employee at the request of the self-insured employer, and prepared a report dated March 13, 2019.  Dr. Wicklund diagnosed the employee with subjective pain from the neck, mid-back, and low back following a contusion, and a closed head injury with residual blurred vision.  He offered no opinion regarding the status of the head injury or blurred vision.  He was of the opinion that the spinal injuries were temporary and resolved, without the need for any work restrictions or additional medical care.  He stated that the employee had reached maximum medical improvement (MMI).  (Ex. N.)

The employee was also evaluated by Dr. James Allen, a neurologist, at the request of the self-insured employer.  In his report, dated March 22, 2019, Dr. Allen opined that the employee had some residual symptomology of post-concussion syndrome and a soft tissue strain of the neck.  He related these conditions to her work injury.  He did not believe the employee had yet reached MMI.  He noted possible functional overlay.  He believed that the employee would be able to return to part-time work by the end of the month, gradually working her way back to full activities.  He recommended she use tinted glasses and that she be permitted to regulate light and background noise at work as needed.  He did not believe she needed any other restrictions and anticipated she would be able to work full-time within one month following her return to work.  (Ex. K.)

On April 15, 2019, Ms. VonDrasek wrote a letter to the employee advising her that the employer had part-time work for the employee within the restrictions suggested by Dr. Allen.  The employer would allow the employee to minimize bright lights and background noises and to wear tinted glasses on the job.  (Ex. C.)  The job offer would allow the employee to gradually work back to full activities.  Ms. VonDrasek testified that there was no issue regarding contamination by the employee touching her sunglasses, as several other lab workers wear glasses, and sometimes take them off to use the microscope.  At the time of the job offer, the only doctor describing work restrictions was Dr. Allen, the doctor hired by the self-insured employer, and thus this job offer was based on the restrictions suggested by the self-insured employer’s medical expert.

The self-insured employer placed the employee under surveillance.  A surveillance video filmed during April 2019 showed the employee outdoors on sunny says without sunglasses and showing no obvious ill effects from exposure to bright lights or noise.  (Ex. E.)

The employee told her treating physicians and the self-insured employer’s examiners that she had no prior history of headaches, vision problems, or spinal pain.  She testified to the same.  On cross-examination, the employee was shown medical records documenting a prior history.  The employee stated that she had forgotten about prior problems and had since recovered.

On May 2, 2019, the employee and her QRC, Lori Magoffin, met with Ms. VonDrasek to review the April 15 job offer.  On May 9, 2019, CNP Kosevich wrote a note indicating that the employee would be off work until the employee was examined by a neuro-ophthalmologist later in the month as she continued to suffer with headaches and visual difficulty.  CNP Kosevich planned to see the employee on May 31, 2019, after she had been seen by the neuro-ophthalmologist, and planned to update the work restrictions at that time.  CNP Kosevich also noted that she expected the employee would have to work at a slower pace with simpler duties upon her initial return to work.  (Ex. D.)  On May 13, 2019, QRC Magoffin notified Ms. VonDrasek that the employee could not return to work until she had been evaluated by neuro-ophthalmologist Dr. Anne Abel, which was scheduled for May 22, 2019.

The employee saw Dr. Abel on May 22, 2019.  Dr. Abel concluded that the employee had light sensitivity which would limit her ability to work with a computer.  Dr. Abel recommended that the employee get special prism glasses to help with double vision, light sensitivity, and headaches.  She anticipated that the employee would be able to return to work after getting the glasses.

The self-insured employer had the employee examined by Dr. Allen Weingarden, a neuro-ophthalmologist.  Dr. Weingarden also reviewed the employee’s medical records and the surveillance video.  In his May 30, 2019, report, he opined the employee had no neuro-ophthalmic injury as a result of the work injury.  He observed findings suggestive of “malingering or functional visual loss.”  He opined that she needed no work restrictions and was able to work without problems related to sensitivity to lights or noises.  (Ex. M.)

On June 3, 2019, the self-insured employer filed a petition to discontinue the employee’s TTD benefits, alleging her refusal to accept a job offer, and based on the opinions of Drs. Wicklund and Weingarden.

The employee saw Dr. Abel again on June 4, 2019.  Dr. Abel diagnosed convergence insufficiency and photophobia due to a traumatic brain injury.  She again prescribed special prism glasses with tinting.

On June 6, 2019, CNP Kosevich wrote a note indicating that the employee was continuing to suffer from headaches and vision difficulty and needed additional therapies and the specialized glasses recommended by Dr. Abel before she could return to work.  CNP Kosevich opined that, after obtaining the prism glasses, the employee would be able to return the work, initially at a slower pace and with simpler duties, and then slowly increasing her hours and duties.

In June 2019, QRC Magoffin sent two e-mails to the self-insured employer regarding the employee’s need for the prism glasses.  The self-insured employer responded that the glasses were denied pursuant to Dr. Weingarden’s opinion.  On July 9, 2019, the self-insured employer notified the QRC that other additional care and therapy to the employee’s spine as well as for her headaches and vision were being denied based on the opinions of Dr. Wicklund and Dr. Weingarden.

On August 6, 2019, Dr. Allen wrote a supplemental report after receiving additional records and the surveillance video and conducting a second examination of the employee.  He opined that the employee had completely recovered from her work injury and that her symptomology was due either to malingering or to anxiety with marked functional overlay.  He was of the opinion that, regardless of causation, the employee had reached MMI and did not require any work restrictions.  (Ex. L.)

A hearing on the self-insured employer’s petition to discontinue was held before compensation judge Kristina Lund on September 10, 2019.  On September 27, 2019, the compensation judge issued her Findings and Order.  The compensation judge adopted the opinions of Drs. Allen, Wicklund, and Weingarden as persuasive and found that the employee had not proven entitlement to TTD benefits since the discontinuation of those benefits.  (Findings 29 and 30.)

In her memorandum, the compensation judge noted that the employee was a poor historian with respect to her history of headaches, that the surveillance video showed the employee functioning asymptomatically in bright sunlight, without sunglasses, that the employee, since at least March 2019, had rejected her treating provider’s recommendation that she try to return to work, and that the opinions of Dr. Allen and Dr. Weingarden were well founded and persuasive.  Consequently, the compensation judge noted that the employee did not have any physical restrictions related to her work injury and was not entitled to TTD benefits since the June 3, 2019, discontinuance.

The employee appeals the Findings and Order of the compensation judge, alleging that they were procured as the result of fraud on the part of the self-insured employer.  The employee also petitions to vacate the same Findings and Order, again alleging fraud.

In conjunction with her appeal to this court and her petition to vacate, the employee submitted copies of post-hearing emails between her attorney and the self-insured employer’s attorney which she contends demonstrate fraud committed by the self-insured employer at the hearing.  These emails, sent in September and October 2019, state that, given the outcome of the hearing, the employee was ready to return to work, but that the self-insured employer responded that, pursuant to company policy, the employee would not be permitted to return to work absent a release to return to work from her treating doctors.  (Post-hearing submissions, captioned “Exhibits” 26-29.)

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).

In both her appeal and petition to vacate, the employee relies on a single argument that the self-insured employer intentionally and falsely represented to the compensation judge its belief of the medical experts’ opinions that the employee was capable of working without restrictions, but actually found the employee’s physicians’ opinions more credible.  The employee asserts that this representation induced the compensation judge to adopt the defense expert opinions and discontinue the employee’s TTD benefits.  The employee contends that the post-hearing conduct of the employer in refusing to return the employee to work without a medical release from her treating physicians proves that the employer actually does not, and presumably did not at the time of the hearing, view the medical experts’ opinions as to a lack of work restrictions as credible, and instead would rely upon the opinions of the employee’s treating doctors regarding her restrictions and ability to work.  The employee claims that if the self-insured employer had admitted to the compensation judge there was no intention of relying on the opinions of the medical experts that she had no restrictions in allowing her to return to work, the compensation judge would not have accepted those opinions and discontinued her TTD benefits, but instead would have accepted the opinions of the employee’s physicians and continued her TTD benefits.

In her argument supporting her appeal, the employee relies heavily on emails showing events occurring after the compensation judge issued her Findings and Order.  Generally, this court’s review of an appeal is based solely upon the record before the compensation judge at the time of the hearing.  See Minn. Stat. § 176.421, subd. 1(3) (“in view of the entire record as submitted”); Gollop v. Shale H. Gollop, D.D.S., 389 N.W.2d 202, 38 W.C.D. 757 (Minn. 1986).  Accordingly, parties are normally not permitted to supplement the record on appeal with additional evidence that was not submitted to the court below.  See, e.g., Giersdorf v. A & M Constr., Inc., 820 N.W.2d 16, 23, 72 W.C.D. 499, 508 (Minn. 2012).  We note, however, that Minn. Stat. § 176.421, subd. 1, allows an appeal on the grounds that the findings of the compensation judge were procured by fraud.  It may be argued that, in cases where subsequent events demonstrate that fraud occurred at the hearing, this court may need to review evidence that was not in front of the compensation judge.  In this case, however, we need not reach the issue of whether it would be proper to consider post-hearing evidence in such an appeal.  The employee has raised the exact same claim of fraud in the context of her petition to vacate the compensation judge’s Findings and Order, and there has never been any doubt that this court’s review of a petition to vacate may rely upon evidence occurring after the award or order for which vacation is sought.  Consequently, we will address the fraud allegations, and the documents said to support them, as part of the petition to vacate.

As to the rest of the appeal, the compensation judge made findings noting the employee’s history of headaches and memory loss dating back to at least 2009, photophobia and nausea dating back to at least 2011, and neck and low back pain dating back to at least 2013.  (Finding 2.)  She also noted that the employee denied to all of her medical providers any history of headaches or treatment of headaches before her September 26, 2018, work injury.  (Ex. 3.)  She also noted that the self-insured employer hired a private investigator to surveil the employee and that the surveillance video showed, on two different dates in April 2019,  the employee walking outside on a bright day without sunglasses, no apparent balance issues, and no observable symptoms of difficulty with her vision or visual distress.  (Finding 17.)  The compensation judge noted that the employee missed several of her occupational therapy appointments and was ultimately discharged from occupational therapy for failed appointments.  (Finding 19.)  Based on these findings as well as the defense medical opinion evidence, the compensation judge discontinued the employee’s TTD benefits.

Because the employee did not allege any grounds other than fraud for her appeal, and because substantial evidence supports the Findings and Order of the compensation judge, we affirm.

The employee initiated the review of this case in this court by filing a notice of appeal.  It is clear, however, from the arguments in her brief, that she is also asking this court to vacate the Findings and Order of the compensation judge.  The self-insured employer correctly notes that the employee did not formally file a petition to vacate.  Nevertheless, in the respondent’s brief, the self-insured employer acknowledged that this court might consider the employee’s argument as a petition to vacate, and offered arguments to defend against such a petition.

Minn. Stat. § 176.461, grants this court original jurisdiction to consider petitions to vacate, including those alleging fraud as the basis for the petition.

The elements of fraud in a workers’ compensation case are:

We conclude the employee has failed to make a showing of fraud that would warrant vacating the compensation judge’s Findings and Order.

First, there is no false representation of a fact.  The self-insured employer did not make any representation to the compensation judge that this case turned on whether the parties “believed” the opinions of their respective medical experts.  Also, the self-insured employer did not conceal the policy that the employee’s return to work required a release from a treating doctor.  While the self-insured employer submitted expert reports in support of the petition to discontinue, the purpose of submitting them was not to prove its “belief” in those opinions.  In fact, what the self-insured employer may or may not have believed regarding the medical opinions was not presented as evidence, and any lay opinions about the employee’s medical situation would not have been evidence on the issues that were before the compensation judge at the hearing.  Likewise, the self-insured employer never suggested a lack of intent to enforce the employment policy regarding returning the employee to work.

Second, there is no basis to assume the compensation judge relied upon the subjective beliefs of the self-insured employer in weighing the medical expert opinions.  We see no reason to conclude that the compensation judge decided to accept the self-insured employer’s medical expert opinions due to the sincerity displayed by the self-insured employer in offering medical opinion evidence.  Similarly, we see no reason to conclude the compensation judge discontinued the employee’s TTD benefits on the assumption that the employee could return to work without a release from her own treating doctor.

The employee refused an offer to return to work, asserting she was medically unable to do the job.  The self-insured employer defended against the employee’s workers’ compensation claim and offered medical opinion evidence that the employee was capable of performing the job offered to her.  The compensation judge accepted the medical expert evidence offered by the self-insured employer and discontinued the employee’s benefits.  After the decision, the employee decided to seek to return to work.  The self-insured employer then enforced the policy, known by the employee and the compensation judge, requiring that the employee provide a release to work from her treating physician.  These actions by the self-insured employer, defending against a workers’ compensation claim and later enforcing a known employment policy, are not fraud.

There is no evidence of fraud to support a petition to vacate the Findings and Order of the compensation judge.