EVIDENCE – CREDIBILITY; EVIDENCE – EXPERT MEDICAL OPINION. Where there is no clear evidence to the contrary, a compensation judge’s reliance upon the employee’s credible testimony and the opinion of the employee’s treating physician in determining that the employee sustained an injury that arose out of and in the course and scope of his employment will be upheld.
Compensation Judge: William J. Marshall
Attorneys: Karen R. Swanton, Law Offices of Menk & Menk, Coon Rapids, Minnesota, for the Respondent. Christine L. Tuft, Arthur, Chapman, Kettering, Smetak & Pikala, P.A., Minneapolis, Minnesota, for the Appellants.
Affirmed.
DAVID A. STOFFERAHN, Judge
The employer and insurer have appealed the compensation judge’s determination that the employee sustained a personal injury arising out of and in the course and scope of his employment on or about June 3, 2020. We affirm.
Beginning in 2006, the employee, Timothy Humble, worked in the capacity of an independent operator and employee as an over-the-road trucker for the employer, Swift Transportation Company. At the time of the June 3, 2020, work injury, he was working as an employee and conducting driver training with a student driver.
On June 1, 2020, the employee and the student driver drove to Morris, Illinois, to pick up a trailer of product for distribution in North Dakota. Once the employee and the student driver arrived in Illinois, they dropped off the empty trailer at the distribution center, drove to a truck stop across the street, and spent the night in their sleeper cab. The next morning, June 2, 2020, the employee and the student driver went back to the distribution center to pick up the loaded trailer.[1] The trailer was supported by the “landing gear” which is raised and lowered manually by turning a small wheel which controls the jacks. The employee testified that this procedure was always difficult to do. “You basically have to put your full body weight into . . . every turn on that . . . .” (T. 36.) On June 2, 2020, the employee was required to rotate the wheel 10 to 13 times before the trailer was properly lowered and attached to the truck. After the employee completed this task, he experienced soreness and fatigue in his right arm and upper back between his shoulder blades. The employee took three to four Aleve he had in his truck before making the eleven-hour drive to Fargo, North Dakota. The student driver operated the truck with the employee as a passenger. Upon arrival in Fargo, they dropped the trailer off at the distribution center to be unloaded and took the truck to a truck stop to spend the night.
The employee woke the next morning, June 3, 2020, and noticed his arm felt “a little odd” or “a little uncomfortable.” He went into the truck stop for breakfast. As he waited for his order, the employee’s arm and shoulder pain worsened. The employee paid for his meal and left the truck stop.
On that same day, while the employee and student driver made the return trip to Morris, Illinois, the employee had a telemedical appointment with Dr. King Leon. He was prescribed Baclofen and Medrol for his neck and back pain, which he picked up in Morris upon their arrival. The employee requested a trip back to Baxter, Minnesota, in order to return home due to ongoing pain.
After returning home, the employee visited Eveleth Chiropractic on June 5, 2020, reporting an increase of right-sided pain. At this visit, he reported no trauma, but did note the work activity of cranking the trailer. He was eventually referred for an MRI scan which was performed on June 12, 2020, and showed a right-sided C5-6 disc herniation with C6 nerve root compression.
On June 15, 2020, the employee was seen at St. Luke’s Clinic and evaluated by Dr. Paul Sanford who diagnosed him with cervical radiculopathy at C2-C6 and referred him to Dr. Maricela Schnur. She saw the employee on August 18, 2020, and indicated the employee’s pain was secondary to right-sided cervical radiculitis. She recommended physical therapy and a right-sided C7-T1 epidural cervical injection which was performed on September 22, 2020. The employee reported 30 percent relief from the injection on September 30, 2020. Dr. Schnur recommended continuing physical therapy and if there was no additional relief from the injection, she recommended an EMG, possible trigger point injections, and a follow up with a neurologist.
The employer and its insurer admitted liability for the June 3, 2020, injury and commenced payment of medical expenses and temporary total disability benefits.
The employee underwent an independent medical examination by Dr. Paul Cederberg on November 3, 2020, at the request of the employer and insurer. In his report dated December 17, 2020, Dr. Cederberg agreed that the employee’s symptoms were due to disc herniations at C5-6 and C6-7. It was his opinion, however, that there was a spontaneous cervical disc rupture with C6 radiculopathy that was not related to any physical activity. Based upon this report, the employer and insurer filed a notice of intent to discontinue benefits on December 22, 2020. Benefits were ordered reinstated following an administrative conference.
The employee was seen by Dr. Stefan Kaiser on April 21, 2021, for acute right-sided neck and shoulder pain. Dr. Kaiser noted right-sided C5-6 disc herniation with probable C5 radiculopathy and right-sided AC joint arthropathy. He recommended right-sided targeted injections at C5-6 and in the AC joint. He also indicated that while there were signs of preexisting degenerative joint disease, the herniation was more likely than not related to the employee’s work activities in June 2020.
The employer and insurer then filed a petition to discontinue benefits. The matter was heard before a compensation judge on May 25, 2021. At the outset of the hearing, counsel for the parties agreed that the only issue before the compensation judge was whether the employee had sustained a work-related injury on or about June 3, 2020. (T. 5-6.) In his Findings and Order issued on July 21, 2021, the compensation judge concluded the employee had suffered a work injury on that date and denied the petition to discontinue. The employer and insurer appeal.
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 only issue before the compensation judge at the hearing was whether the employee sustained an injury arising out of and in the course and scope of his employment with Swift Transportation on or about June 3, 2020. The compensation judge decided this issue in the affirmative. The employer and insurer, hereinafter the appellants, claim the compensation judge erred in accepting the employee’s testimony and in relying on that testimony in making his decision. We disagree.
It is undisputed that the employee was not diagnosed with a herniated cervical disc at any time prior to June 3, 2020. The question is whether the work activity at the distribution center was a substantial contributing factor in the development of that condition. It is also undisputed that the physical activity of cranking the trailer into position was very strenuous on the employee. The employee testified cranking the trailer was always difficult and there is no evidence to the contrary. Finally, we note that the employee’s account of the onset of his upper back and shoulder symptoms following this work activity was consistent.
Determining the cause of the accepted disc herniation in this case requires a choice of expert medical opinion. There are two such opinions in this case: that of Dr. Kaiser and that of Dr. Cederberg. Dr. Kaiser’s report demonstrates that in addition to examining the employee, he also reviewed the employee’s previous medical records. His opinion was that the work activity of cranking the trailer was “more likely than not” the cause of the herniation. Dr. Cederberg also examined the employee. However, it is not clear from his report which medical information was reviewed by Dr. Cederberg. His opinion was that the disc herniation was “spontaneous" and not related to any activity.
In his decision, the compensation judge stated, “The employee’s credible testimony when coupled with the medical records provided, give Dr. Kaiser’s opinion the necessary support to make it persuasive. Because Dr. Kaiser’s opinion of a work-related incident in June is supported by the record, and persuasive, it is adopted by this Compensation Judge.” (Mem. at 5.) A judge’s choice between medical experts whose testimony conflicts is usually upheld unless the facts assumed by the expert in rendering his opinion are not supported by the evidence. See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). The record supports the compensation judge’s choice of Dr. Kaiser’s medical opinion.
The appellants’ only defense made at the hearing and on appeal is to attack the employee’s credibility. The appellants reference a motorcycle accident and a 2016 ATV accident as other possible causes of the employee’s symptoms. We note, however, the motorcycle accident occurred 25 years prior to the date of injury and there is no medical opinion addressing the significance of the ATV accident. Finally, the appellants allege inconsistences in the employee’s accounts of the incident he gave to medical providers regarding the date of injury.[2] The compensation judge was well aware of these arguments, nevertheless, he found the employee credible. “Assessment of witness credibility is the unique function of the trier of fact.” Even v. Kraft, 445 N.W.2d 831, 835, 42 W.C.D. 220, 225 (Minn. 1989). It is not the role of this court to evaluate the probative value of witness testimony or to choose different inferences from the evidence than the compensation judge. Redgate v. Sroga’s Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988). The record supports the compensation judge’s determination that the employee sustained a work-related injury on or about June 3, 2020.
The decision of the compensation judge is affirmed.
[1] The employee testified that a fully-loaded trailer weighs between 40,000 to 45,000 pounds.
[2] The employer and insurer argue in their brief that the medical record from the June 15, 2020, clinic visit contradicts the employee’s testimony of a June 3, 2020, work injury. They argue that at that visit, the employee reported he was turning a stiff crank on his semi-trailer truck on Tuesday, June 9, 2020, that the employee noted increased neck and shoulder pain following this task, but that the severe pain did not start until the following day, June 10, 2020. We cannot agree that a medical history taken by a nurse, some other staff person, or even a doctor is always more accurate than the history provided by a patient. It is for the compensation judge to determine what weight, if any, is to be given to the recorded history. See e.g., Sanchez-Rivera v. Swift Pork Co., 78 W.C.D. 623 (W.C.C.A. 2018) (citing Trevino v. Granite Falls Municipal Hosp., 72 W.C.D. 481, 489 (W.C.C.A. 2012) (weighing of evidence is within the sound discretion of the trier of fact)).