RICHARD ANDERSON, Employee/Respondent, v. WESTMOR INDUS. and SENTRY CAS. CO., Employer-Insurer/Appellants, and TARRANT REHAB. SERVS., Intervenor.

The employer and insurer appeal the compensation judge’s findings that the employee suffered a work-related injury which resulted in disability and wage loss.  Because substantial evidence supports the compensation judge’s findings and order, we affirm.

Richard Anderson, the employee, worked several years as a welder for Westmor Industries, the employer.  As a welder, the employee was physically able to perform the duties of his job, which included regularly lifting up to 60 pounds, bending, and twisting in awkward physical positions inside a large propane tank.  On March 29, 2021, the employee was inside the tank bending at the waist and welding flanges.  When he exited the tank and stood up, he felt immediate and intense low back pain which caused him to drop to his knees.  The employee testified that he had never experienced the level of pain that he had following this event.  Two days later, he treated with a chiropractor, Allan Monroe, D.C., and reported severe low back and leg pain.  Dr. Monroe restricted the employee from returning to work and recommended ongoing treatment.

An MRI of the lumbar spine performed on June 8, 2021, showed S1 nerve root impingement.  Dr. Monroe diagnosed the employee with a herniated disc at the L5-S1 level and restricted the employee from full-duty work.  On July 26 and 27, 2021, the employee underwent a functional capacities evaluation (FCE) followed by a written report indicating that he gave maximal effort during the examination.  The FCE recommended that the employee avoid prolonged standing and lifting above 20 to 35 pounds but permitted rare lifts of 40 pounds.  Dr. Monroe agreed with the FCE restrictions, and the employee remained off work.  On August 25, 2021, the employer terminated the employee due to excessive absence from work.  In September, the employee began a job search with the assistance of a qualified vocational consultant (QRC).  Eventually, the employee began working at jobs within his restrictions, but at a wage loss.

While treating with Dr. Monroe on October 6, 2021, the employee complained of a severe aggravation of his symptoms with shooting pains in both legs.  About three weeks later, the employer and insurer obtained surveillance of the employee which showed him replacing siding on his home.  In a surveillance video taken over eight hours on October 25, 2021, the employee was seen bending at the waist, carrying and climbing a ladder, jogging a short distance along the front of his house, moving a wheeled scaffolding over a grassy surface, and hanging strips of vinyl siding.

The employer and insurer retained a medical expert, Ross Paskoff, M.D., to conduct a record review of the employee’s condition.  Dr. Paskoff did not examine the employee or take a history from him.  He reviewed multiple medical records and a foundation letter from the employer and insurer and also viewed the video surveillance showing the employee installing siding on his home.  Dr. Paskoff diagnosed the employee with a lumbar spine myofascial strain which would have resolved six weeks after the injury.  He opined that the surveillance video showed the employee engaged in physical activities without apparent difficulty and that he needed no work restrictions or medical treatment.

The employee also retained a medical expert, Daniel Hanson, M.D.  Dr. Hanson examined the employee, took a history from him, and reviewed multiple medical records as well as photos of the video surveillance.  In his July 13, 2022, narrative report, Dr. Hanson concluded that the employee sustained an L5-S1 disc herniation as a result of the March 29, 2021, work injury.  He opined that the employee would need ongoing restrictions and treatment and that the activities shown in the video surveillance did not fall outside of his restrictions.

Dr. Monroe, who had treated since the work injury, also drafted a narrative report concluding that the employee suffered a permanent injury in the nature of a herniated disc at the L5-S1 level because of his work injury.

The employee filed a claim petition seeking wage loss, medical, and vocational rehabilitation benefits.  The matter was heard before a compensation judge on September 16, 2022. At the hearing, portions of the employee’s deposition, which took place ten days after the surveillance footage was taken, were read into the record.  The employee confirmed that he found activities like housekeeping that included bending and reaching, to be difficult.  The employee also agreed that the activity seen on video surveillance was inconsistent with his deposition testimony.  He also testified he had started re-siding his home around the time he was terminated from work and that it was an ongoing project and he felt he could physically do the siding job since it was not outside his restrictions, but he could not do such work daily.  He also testified he had done way too much that day and the work had caused an aggravation of his low back symptoms.

The compensation judge issued his Findings and Order on November 15, 2022, and found that Dr. Hanson’s expert medical opinion to be more persuasive than that of Dr. Paskoff and that the employee’s testimony was credible.  The judge determined that the employee’s work injury was a substantial contributing cause of his low back condition and his need for work restriction, and therefore awarded all benefits claimed by the employee.  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).

On appeal, the employer and insurer argue that the judge’s findings are unsupported by substantial evidence and should be reversed.  They contend that the judge erred in relying on Dr. Hanson’s medical opinion because he only reviewed photos from the surveillance video, rather than watching the video itself.  Characterizing the employee’s description of his symptoms to his doctor as “shameless and inexcusable dishonesty,”^[1] they argue that the judge erred in finding the employee’s testimony credible.  They further argue that if the award of vocational rehabilitation services is affirmed, some of the charges should be deemed unreasonable and unnecessary.

We are not persuaded.  The judge reviewed the video surveillance at the hearing and this court has also reviewed it.  Though the video^[2] shows the employee moving and bending, he does not appear to be physically engaged in activities outside his restrictions.  The vinyl siding appears very lightweight since the employee is seen carrying a large sheet using one hand.  Although he is shown standing and squatting, the employee testified at the hearing that he could not work on this project daily and that it was an ongoing project which he worked on only from time to time.^[3]  While he acknowledged that the video footage was inconsistent with some of the symptoms listed in the contemporaneous medical records, he explained that he was not asked about his symptoms at each office visit.  The judge weighed all the evidence and found that the employee’s testimony was credible.  A finding of credibility is the unique function of the fact finder.  Even v. Kraft, 445 N.W.2d 831, 835, 42 W.C.D. 220, 225 (Minn. 1989) (“Assessment of witnesses’ credibility is the unique function of the trier of fact.”)  We will not disturb such a finding unless it is clearly erroneous in the sense it is 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).  The compensation judge could reasonably conclude that the employee was credible.

The judge also found the opinion of the employee’s medical expert, Dr. Hanson, to be more persuasive than that of the employer and insurer’s medical expert, Dr. Paskoff.  Dr. Hanson concluded that the work injury caused the employee’s L5-S1 disc herniation and that the surveillance images and activities depicted were consistent with the restrictions he recommended.  The judge reasoned that Dr. Hanson’s opinions were consistent with the employee’s credible testimony and the preponderance of the medical evidence.  In contrast, the judge noted that Dr. Paskoff had never examined the employee.  Dr. Paskoff’s opinion that a preexisting condition caused the disc herniation, the judge explained, was inconsistent with the medical evidence showing that the employee had no restrictions and could perform his job as a welder up until the March 29, 2021, work injury.  The compensation judge has the discretion as the trier of act to choose between competing and conflicting medical expert opinions.  Ruether v. Mankato State Univ., 455 N.W. 2d 475, 478 (Minn. 1990).

The employer and insurer also argue that Dr. Hanson’s failure to view the actual video surveillance constitutes a lack of foundation in support of his opinion so that the judge’s acceptance of Dr. Hanson’s opinion is reversible error.  We disagree.  A foundation objection of Dr. Hanson’s report was waived at the hearing, and the employer and insurer cannot raise this issue for the first time on appeal.  Mikel v. Allina/United Hosp., No. WC08-152 (W.C.C.A. Oct. 9, 2008); Kelsey v. Lovegreen Indus. Servs., No. WC07-159 (W.C.C.A. Dec. 12, 2007).  In any event, we conclude that Dr. Hanson had a sufficient foundation on which to base his opinion.  He examined the employee, took a medical history, reviewed multiple medical records, and reviewed the surveillance report.  While the surveillance report was not offered into evidence along with the video, this is not dispositive.  An adequate foundation is present where an expert relies on sufficient facts that are supported by the evidence and not on speculation or conjecture.  Gianotti v. Indep. Sch. Dist. No. 152, 889 N.W.2d 796, 77 W.C.D. 117 (Minn. 2017).  We conclude that substantial evidence supports the compensation judge’s findings that the employee suffered a work injury that resulted in restrictions, medical treatment, and wage loss, and we affirm.

Finally, the employer and insurer argue that certain vocational rehabilitation charges were unreasonable, specifically those billed by the QRC for traveling by car to visit the employee in person.  The employer and insurer assert that these charges were unreasonable and that the QRC should have met with the employee by phone or virtually.  We are not persuaded.  The QRC submitted an R-3 form which specifically contemplated travel expenses as part of the approved rehabilitation plan.  Since the initiation of rehabilitation services, the QRC’s in-person meetings with the employee included attending medical appointments and on-site job analysis.  The employer and insurer did not object to these in-person travel expenses and the QRC acted appropriately when setting out a description of services she would provide to the employee.  As a result of the vocational services provided, the employee was able to find several physically suitable jobs within his physical restrictions.  Substantial evidence supports the compensation judge’s award of vocational rehabilitation services, and we affirm.