ANDRE ECKBERG, Employee/Appellant, v. ATLAS ROOFING and ACUITY INS., Employer-Insurer/Respondents, and N. MEM’L HEALTH CARE, FAIRVIEW HEALTH SERVS. – ALL ENTITIES, MINN. DEP’T OF HUMAN SERVS., and HENNEPIN HEALTH, Intervenors.

The employee appeals the denial of his claim, alleging that the compensation judge’s findings are inconsistent and not supported by substantial evidence.  We affirm.

The employee began working in the roofing industry as a teenager, and he began working with the employer in 2005 when he was about 20 years old.  The employee’s job duties included applying hot tar, rubber, and rock, laying down insulation, and gluing down materials.  He would also tear off old shingles, pull nails, replace wood, set down new tar paper, and nail in new shingles.  On rare occasions, he would carry a 70- to 80-pound bundle of shingles up a ladder.

The employee claimed that he suffered a work-related injury to his back on May 7, 2018.  He testified, “I remember that specific day.  I remember getting to the shop, loading what we needed because we already worked on the job a day before my injury, or it might have been a Friday, because May 7 is a Monday.”  (T. 24.)  He described being bent over, shingling, and feeling a weird pain in his back which got worse when he tried to straighten up.  He stated that he knew something was wrong, reported the injury to his boss, and continued working.  In his pre-trial deposition, the employee stated that he was “absolutely certain” that the injury happened at a specific home roofing job.  He acknowledged that there was evidence that this job was completed in September 2017, months prior to his claimed date of injury, although he disputed that evidence.  When asked whether he could be mistaken in the address of the job, the employee testified, “I could BE wrong, but I'm positive it was - I'm not wrong on the address, but the timeframe I could be wrong, but I'm positive it was that house.”  (T. 77 (emphasis in original)).^[1]

One of the employee’s bosses testified that the employee did not work on May 7, 2018, his claimed date of injury, or anytime between May 3 and May 10.  This was confirmed by wage records in evidence.

The employee’s boss testified that he knew the employee complained of back pain in 2018, but he did not know that there was a workers’ compensation claim until receiving a letter from the employee’s attorney in 2019.  The employee’s other boss testified that sometime after May 7, 2018, the employee complained of low back pain after having lifted an appliance over the weekend at his home.^[2]

After May 7, 2018, the employee began seeing doctors for back pain but at no time reported to a doctor that his pain was related to a work injury or his work as a roofer.  When asked why he did not tell his doctors about the work injury, the employee testified that “because every time someone gets injured there, they (his bosses) say don't report it.  They make it loud and clear.”  (T. 29.)  The employee’s boss testified that he has never told any employee not to report a work injury.

On May 10, 2018, the employee was seen at Fairview Clinics stating that he woke up with low back pain the day before.  He was not aware of any fall or injury that could have caused this pain.  He told his doctor of a major back injury in 2012 working as a roofer when he “blew out his back,” but that there was no new trauma to precipitate his current pain.  (Ex. 5.)  The employee testified that he did not recall telling emergency room doctors that he blew out his back in 2012 and had back pain ever since, but that he did tell the doctor he was a roofer.

On May 23, 2018, the employee went to Hennepin Healthcare with low back pain, which he had since 2012 and which had recurred about two weeks before.  He reported that his pain was not associated with any specific event, although he did recall helping his grandmother a few days before this episode started.  The employee was seen in Fairview Clinic on May 27, 2018, complaining of chronic low back pain for six years.  He denied any recent trauma or injury that could have caused his pain.  On June 11, 2018, the employee was seen at Fairview with chronic low back pain for six years that had worsened since mid-May.  He denied any falls or injury to his back.  The employee was seen at Hennepin Health on June 18, 2018, and he reported that he woke up with pain on May 7, 2018, without any specific incident, and that he typically had back pain about twice a year when roofing, but was always able to work through the pain.  On July 17, 2018, the employee reported to Fairview with a recurrence of low back pain upon picking up his son at home.

The employee was examined for low back pain by several doctors, underwent an MRI, received conservative care, and tried various forms of therapy, all without success in treating his symptoms.  The MRI showed a small disc herniation at L5-S1.  Surgery was eventually recommended and on November 14, 2018, the employee underwent a left L5-S1 hemilaminectomy and microdiscectomy.

The employee’s primary medical provider was Dr. Todd Barrett of North Memorial Health Care.  The employee saw Dr. Barrett on August 1, 2018, October 10, 2018, and November 5, 2018, without any mention of the work injury or that he was employed as a roofer.  In a record dated June 24, 2019, Dr. Barrett mentioned a workers’ compensation attorney and that a form needed to be completed, but made no mention of a work injury.  On September 11, 2019, Dr. Barrett completed a health care provider report, stating the employee had a work-related disc protrusion because of an injury occurring on May 7, 2018.  There was no evidence as to what Dr. Barrett knew of the employee’s work injury.

Dr. Constantin Starchook of Twin Cities Pain Management provided a medical marijuana consultation for the employee on October 23, 2019.  His treatment note contained no mention of a May 7, 2018, work injury, the employee’s work duties, or even that he is employed as a roofer.  Later, Dr. Starchook completed a health care provider report on February 5, 2020, in which he opined that the employee had a work-related spondylosis and degenerative disc disease due to his 15-year history of roofing work.  There was no evidence regarding what Dr. Starchook knew of the employee’s work activities.

The employee was examined by Dr. Hart Garner at the employer and insurer’s request.  In his report dated November 15, 2019, Dr. Garner opined that the employee suffered a temporary aggravation of his low back condition as a result of the injury of May 7, 2018.  He went on to state that the temporary aggravation was “consistent with not having any significant injury but working hard with the type of job that he had.”  (Ex. 1.)  In a supplemental report dated April 27, 2020, Dr. Garner stated that this type of injury typically would have lasted from two to five months.

At the request of the employee’s attorney, Dr. Jack Bert completed a medical record review and issued a report dated May 9, 2020.  He later performed a physical examination of the employee and issued a subsequent report.  It was Dr. Bert’s opinion that the employee had a permanent aggravation of a pre-existing low back condition along with a component of a Gillette^[3] injury.  He later wrote that the employee had developed a disc herniation on May 7, 2018.  Any foundation letter sent to Dr. Bert was not offered into the record, nor was there any other evidence offered regarding what the employee told Dr. Bert regarding the specific work event or his work activities.

The employee filed a claim petition alleging both a specific work injury on May 7, 2018, and a Gillette injury based on Dr. Bert’s opinion.  The employer and insurer denied primary liability on the basis that the employee did not work on May 7, 2018, and did not suffer an injury on or about that date.  They also contended that even if he had sustained a work injury, that injury was temporary and had resolved within five months.  The matter came on for hearing before a compensation judge on June 23, 2020.  By a Findings and Order dated October 28, 2020, the compensation judge denied the employee’s claims, finding that the preponderance of the evidence failed to show that the employee suffered a work-related injury on May 7, 2018.  The compensation judge concluded that the employee was not credible as to the time, place, or occurrence of the alleged injury.  The compensation judge noted evidence that was contrary to the employee’s version of events, including evidence that the roofing job at which the alleged work injury occurred had concluded the year prior, and medical records that reflected numerous reports of varying sources of his low back pain, but no report of a May 7, 2018, work-related cause.  The compensation judge reasoned that the employee’s testimony that his bosses discouraged reports of work injuries did not explain “his ever-changing stories” as to the origin of his back pain.  The employee appeals.

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).

On appeal, the employee makes several arguments.  He asserts that the compensation judge’s finding that he did not sustain a work injury is unsupported by substantial evidence.  He also contests the compensation judge’s conclusion that he failed to report the work injury.  Finally, he alleges that the compensation judge made inconsistent findings.  We are not persuaded by the employee’s arguments.

The compensation judge found that the employee failed to meet his burden to show that he suffered a work-related injury on May 7, 2018, relying on the fact that the employee reported different reasons as to how his low back symptoms began.  Throughout 2018 and into 2019, the employee variously described waking up with the pain, lifting his son and exacerbating his pain, and pain that started for no apparent reason.  There was also testimony that the employee had described hurting his back while lifting an appliance.  While the employee asserted that he had been discouraged from reporting work injuries, and denied ever stating that he hurt his back while lifting an appliance, the fact remains that the employee did not tell his treating doctors that he was injured while working, and instead gave numerous explanations for his symptoms.  The compensation judge reasonably concluded that given the varying stories told by the employee, the preponderance of the evidence did not support a finding of the work injury as described by the employee.

Further evidence in the record supports the compensation judge’s conclusion that the employee did not suffer a work injury on May 7, 2018.  The employee insisted that he was injured on May 7, 2018, at a specific job site.  Both testimonial and documentary evidence contradicted the employee’s claim and showed both that he did not work on the date of the claimed injury and that he had not worked at that specific job site for at least eight months before the claimed date of injury.

The record similarly does not support the employee’s claim of a Gillette injury.  The medical reports of Drs. Starchook, Garner, and Bert indicate a potential connection between the employee’s work as a roofer and his low back condition.  However, the record contains insufficient foundation for the opinions of Dr. Starchook and Dr. Bert.  No evidence was offered as to the knowledge the two doctors had regarding the employee’s physical duties or his development of back pain.  And, while there was arguably sufficient foundation for Dr. Garner’s opinion, his opinion was equivocal in that he stated that the employee may have temporarily aggravated his back from working hard.

Further, the testimony offered by the employee was lacking with regard to his work duties, the physical nature of his job, how much time he spent engaged in which activities, or descriptions of how his job was strenuous.  There was no testimony at all regarding any symptoms related to work activities.  It is incumbent on an employee, when presenting a Gillette injury claim, to offer evidence regarding the actual nature of the work duties alleged to have caused the symptoms and to show that supporting medical opinion was based on an adequate understanding of those work duties.  See, e.g., Grieger v. Viking, 62 W.C.D. 54 (W.C.C.A. 2001); Wacek v. Hy-Vee Foods, No. WC05-275 (W.C.C.A. June 5, 2006); Johnson v. Wangerin, Inc., slip op. (W.C.C.A. Oct. 11, 1994).

Finally, the employee argues that the compensation judge’s decision contains inconsistent findings.  The compensation judge found that the employee testified to feeling a sharp pain on May 7, 2018, and found that Dr. Garner opined that the employee had a temporary work injury.  These findings, the employee argues, are inconsistent with the compensation judge’s finding that the employee did not suffer a work injury.  We disagree.  The findings the employee alleges to be inconsistent are simply findings in which the compensation judge summarized evidence.  A finding that contains a summary of evidence, whether it be testimony, medical records, or other documents, does not necessarily equate to a finding that the evidence is credible or is being adopted by the compensation judge.  See Demorrett v. Blake Drillings, slip op. (W.C.C.A. Feb. 21, 2002) (mere recitations of evidence do not qualify as findings of ultimate fact).

Substantial evidence supports the compensation judge’s finding that there was no specific or Gillette injury occurring or culminating on or about May 7, 2018.  Because substantial evidence supports the compensation judge’s findings that there was no work injury, we need not reach the employee’s arguments regarding the notice issue.

The decision of the compensation judge is affirmed.