CAUSATION – SUBSTANTIAL EVIDENCE. The employee’s testimony, medical record and expert medical opinion was substantial evidence supporting the compensation judge’s conclusion that the employee’s work injury was a substantial contributing factor to the employee’s eye injury, disability, and need for medical care and this conclusion was not clearly erroneous.
ARISING OUT OF & IN THE COURSE OF - PROHIBITED ACT. The employee was not precluded from receipt of workers’ compensation benefits as the compensation judge had reasonably concluded that employer and insurer did not adequately demonstrate the existence of the policy or the employee’s claimed violation, and the action engaged in was, at most, performing a permissible act in an impermissible manner.
WAGES - CALCULATION. Due to the employee’s inconsistent work schedule, both in daily hours and days per week worked, calculation of the employee’s average weekly wage by averaging the employee’s actual earnings over the 26 weeks prior to the work injury was appropriate.
Compensation Judge: Elisa M. Murillo
Attorneys: Julie T. Le, Erickson, Bell, Beckman & Quinn, P.A., St. Paul, Minnesota, for the Respondent. Tracy M. Borash, Brown & Carlson, P.A., Minneapolis, Minnesota, for the Appellants.
Affirmed.
KATHRYN H. CARLSON, Judge
The employer and insurer appeal the compensation judge’s finding that the employee sustained a compensable injury on October 5, 2022, that was not barred by the prohibited act doctrine, as well as the compensation judge’s finding on average weekly wage. We affirm.
The employee, Isaac Camarena, began working for the employer, PIAT, Inc., on March 22, 2022, as a restoration technician. His duties often included demolition of damaged or contaminated drywall. On April 26, 2022, the employee was removing a ceiling when debris fell into his right eye. He received medical treatment for his right eye the following day. After that incident, the employer instructed the employee to wear eye protection. The employer gave the employee a verbal warning for not wearing eye protection on April 26, 2022. On July 26, 2022, the employee attended safety training where use of eye protection and personal protective equipment (PPE) were discussed.
On October 3, 2022, the employee began working at a jobsite where a sewer back-up left two inches of standing water containing fecal matter, also known as Category 3 water. Extractors, fans, and dehumidifiers were used to dry the jobsite. While Category 3 water was present, the employee wore full PPE, including a Tyvek suit, gloves, and a respirator. On October 5, 2022, the jobsite had dried sufficiently to begin removal of drywall, baseboards, doors, carpeting, and carpet pads. To remove drywall around stationary items such as water heaters, the employee chalked a horizontal line on the drywall. Two-person teams then cut the drywall, simultaneously using a vacuum to control the resulting dust. The employee was bagging cut drywall on October 5, 2022, when he felt something go into his left eye. He bent forward and wiped his eye, but the debris was not dislodged. During his lunch break the employee rinsed his eye for 10-15 minutes with tap water, and his eye felt better. The employee did not wear PPE on October 5, 2022, and he cannot recall whether he was wearing goggles. He was not wearing contact lenses on that day.[1] He continued to have a scratching sensation in his eye, but as he often gets debris in his eye, he did not think it was significant. The following day, October 6, 2022, he returned to the jobsite to remove screws from the walls and scrub the floors. Two coworkers commented that he had redness in his left eye. (T. 50.)
On October 7, 2022, the employee was sent to a jobsite at a restaurant to work on a grease chute. He removed drywall and insulation and used chemicals to clean. Following work, he met his family at Valleyfair. While at Valleyfair, his eye became painful and sensitive to light. On October 8, 2022, the employee was scheduled to work, but he awoke to his left eye closed and sensitive to light. The employee called into work, reported the injury, and informed the employer that he was seeking medical care. The employee was examined by Noah A. Maddy, M.D., at Emergency Care Consultants/United Regina Hospital Hastings. Based on discussions with the employee, Dr. Maddy attributed the employee’s left eye condition to a chemical burn from industrial strength degreaser. (Ex. E.) As the clinic did not have ophthalmologic coverage, the employee was referred to the Regions Hospital emergency department, where he was seen the same day by Jenna L. Wilkinson, M.D.
At Regions, the employee reported working in construction on a damaged building that had grease and debris, that he went home with no pain while at work, and later noticed his eye was painful and light sensitive. The employee’s left cornea was cloudy under a visible ulceration. Fluid from the eye was taken for further analysis and tested positive for pan-sensitive pseudomonas aeruginosa. Dr. Wilkinson diagnosed the employee with a corneal ulcer, prescribed moxifloxacin, and referred him to the M Health Fairview Eye Clinic. (Ex. F.)
On October 9, 2022, John T. Knapp, M.D., of the HealthPartners Como Clinic, examined the employee. At that visit, the employee gave a history of his left eye being irritated 3 days ago and having significant photophobia and glare the following day. The employee reported that he occasionally sleeps without removing his contact lenses. He also reported the drywall incident on October 5. (Ex. F.) Dr. Knapp recommended that the employee be examined on an urgent basis at the University of Minnesota ophthalmology department.
On October 10, 2022, Victoria Miller, M.D., examined the employee at M Health Fairview Eye Clinic. Dr. Miller noted that:
The patient reports last week on Wednesday (October 5, 2022) he got drywall in his left eye. Of note he had slept in his contacts Tuesday night but was not wearing them on Wednesday.[2] On Thursday he was working with Category 3 water contaminated with fecal matter. (Ex. 7.)
Dr. Miller diagnosed the employee with a corneal ulcer “likely secondary to possible corneal abrasion the previous week combined with poor contact lens hygiene” and prescribed various antibiotics. (Ex. 7.)
The employer’s operations manager completed an accident investigation form on October 10, 2022. The report noted that the employee performed drywall flood cuts in the basement of a jobsite on October 5, 2022, when he got drywall in his eye, and that he reported the injury on October 8, 2022. A witness statement was also summarized that the employee made drywall cuts on October 5, 2022, and that the employee was not wearing his goggles. (Ex. 8.)
The employee continued treatment with M Health Fairview Eye Clinic through the date of hearing. He was restricted from all work through December 28, 2022. (Ex. G.) The corneal ulceration closed, but left scarring. To address the vision impairment left by the corneal scar, the employee underwent a keratoplasty (corneal transplant) on April 6, 2023. (Ex. 7.) He was kept off work from this procedure until April 28, 2023. The employee continues to receive treatment for his left eye and was not considered to have reached maximum medical improvement as of the date of hearing. (Exs. 1, C.)
On September 5, 2023, Jonathan Engman, M.D., examined the employee at the request of the employer and insurer. Dr. Engman opined that the alleged incident on October 5, 2022, was not a substantial contributing cause to the employee’s condition, disability, or need for medical treatment, and that the employee’s use of contact lenses with a history of poor contact lens hygiene and a delay in seeking treatment was the cause of his condition.[3] Regardless of causation, Dr. Engman agreed that the medical treatment to date was reasonable and necessary and that the employee was totally disabled through December 28, 2022, and that he required restrictions through January 28, 2023.
Wassef Chanbour, M.D., from the Department of Ophthalmology and Visual Sciences at the University of Minnesota Medical School issued a report dated October 13, 2023, at the request of the employee.[4] Dr. Chanbour summarized the employee’s treatment with that facility since October 10, 2022,[5] and opined that the corneal ulcer likely resulted from trauma and that there did not appear to be any evidence of contact lens misuse in either eye. (Ex. C.) Dr. Chanbour supplemented his report on October 28, 2023, describing the employee’s treatment in more detail, and providing additional opinions, including the likelihood of a need for future medical treatment. He opined that given the advanced stage of the infection by October 10, 2022, it is highly likely that the infection had been developing for more than three days before that date. Dr. Chanbour noted “it is challenging to definitively distinguish between corneal ulcers induced by contact lens usage and those induced by corneal trauma. However, considering the patient’s history of working in a high-risk environment potentially exposed to germs, the clear account of trauma just days prior to the presentation when the contact lens was not in use, and the severity of the infection at the time of presentation, it strongly indicates that work-related trauma was a significant contributing factor to the infection.” (Ex. C.)
The employee’s hourly rate of pay as of July 9, 2022, was $24 per hour. The employee had earnings in every pay period between July 9, 2022, and the date of injury, including overtime earnings and “after hour bonus pay” for several pay periods.[6] (Ex. 8.) His earnings from July 9, through October 5, 2022, totaled $13,097.00. The employee worked four to six days per week, with varying hours per day.
The employee filed a claim petition seeking temporary total disability (TTD) benefits, payment for medical care, and an initial rehabilitation consultation. The case came on for hearing before a compensation judge on February 13, 2024. The issues were initially identified as whether the employee suffered an injury to his left eye arising out of and in the course and scope of employment, calculation of the employee’s average weekly wage (AWW), eligibility for TTD benefits, reimbursement of medical mileage, and extinguishing the interests of potential intervenors. The employee was the only witness to testify. He testified that he was instructed to wear goggles at every job site. He also testified that the directions were to wear a hard hat and safety glasses when removing ceilings. (T. 47.) After the employee’s direct testimony and the employee resting his case, the employer and insurer raised the additional issue of whether the employee committed a prohibited act. (T. 114.) There was no testimony or other evidence provided regarding the manner in which the eye protection requirement was generally enforced by the employer.
The compensation judge found that the employee’s eye injury arose out of and in the course and scope of his employment on October 5, 2022, that his claims are not barred by the prohibited act doctrine, and that the employee’s average weekly wage is $1,052.08. 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 employer and insurer appeal the finding that the employee’s eye injury arose out of and in the course of his employment. They argue that the compensation judge’s decision is not supported by substantial evidence of record given her reliance on the employee’s “uncredible testimony” and reliance on a medical opinion that lacked adequate foundation. (App. Brief at 14.) They also argue that the compensation judge made an error of law in finding that the prohibited act doctrine did not bar the employee’s claim, and in the determination of the average weekly wage. We disagree.
The employee bears the burden of proving, by a fair preponderance of the evidence, the compensability of his or her claims. See Swanson v. Fairway Foods, 439 N.W.2d 722, 723, 41 W.C.D. 1010, 1013 (Minn. 1989). In this case, the compensation judge relied primarily on the employee’s testimony and the expert opinion of Dr. Chanbour in finding the employee’s eye condition to be work related. The employer and insurer point out numerous inconsistencies between the employee’s testimony and medical records, as well as inconsistencies between his hearing testimony and previous deposition testimony.[7] These inconsistencies, they argue, make his testimony not credible. The assessment of a witness’s testimony is the unique province of the trier of fact. Even v. Kraft, Inc., 445 N.W.2d 831, 835, 42 W.C.D. 220, 225 (Minn. 1989). Here, the compensation judge specifically found the employee’s testimony regarding past eye conditions, the mechanics of the injury, his contact lens usage, his lack of immediate medical treatment, and his understanding of his condition following the injury to be credible.[8] This court must give deference to the compensation judge with respect to the assessment of witnesses’ credibility.[9]
Regarding the compensation judge’s reliance on expert medical opinion, as trier of fact, the judge has discretion to choose between competing and conflicting medical experts’ reports and opinions. Ruether v. State of Minn., 455 N.W.2d 475, 478, 42 W.C.D. 1118, 1122 (Minn. 1990); Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985); Gianotti v. Indep. Sch. Dist. 152, 889 N.W.2d 796, 803, 77 W.C.D. 117, 126 (Minn. 2017). A compensation judge’s decision to adopt the opinion of an expert must be upheld if the opinion has adequate foundation, absent an abuse of discretion. Mattick v. Hy-Vee Foods Stores, 898 N.W.2d 616, 621, 77 W.C.D. 617, 624 (Minn. 2017). “An expert opinion lacks adequate foundation when the opinion does not include the facts upon which the expert is relying in forming the opinion, there is no explanation of the basis for the opinion, or the facts assumed by the expert are not supported by the evidence.” Erickson v. Grand Itasca Clinic & Hosp., No. WC21-6413 (W.C.C.A. Nov. 16, 2021) (citing Hudson v. Trillium Staffing, 896 N.W.2d 536, 540, 77 W.C.D. 437, 442 (Minn. 2017)).
In this case the compensation judge found the opinions of Dr. Chanbour to be persuasive and adopted those opinions. The employer and insurer argue Dr. Chanbour’s opinion lacks foundation for several reasons and therefore should not have been relied upon by the compensation judge. They point out that Dr. Chanbour did not have correct information about whether the employee slept in his contacts the night of October 4, 2022, did not reference reviewing the employee’s medical records from any providers prior to October 10, 2022, and failed to note that the employee did not have symptoms prior to October 7, 2022. However, the employee had treated at Dr. Chanbour’s clinic since October 10, 2022, and had treated primarily with Dr. Chanbour since November 11, 2022. It is evident from Dr. Chanbour’s report that he knew the history of the trauma to the employee’s left eye and that the employee was working in a “high risk environment.” (Ex. C.) Despite the argument of the employer and insurer to the contrary, Dr. Chanbour also knew that the employee wore contact lenses to bed on October 4, 2022, evidenced by the history of the injury in nearly every visit with Dr. Chanbour.[10] Dr. Chanbour also sets out his understanding of the severity of the infection at the time of the employee’s first visit on October 10, 2022. Dr. Chanbour examined the employee on multiple occasions and explained his opinions in both of his reports. A medical expert does not need to review every piece of information in order to have adequate foundation for their opinion. Gianotti, 889 N.W.2d at 802, 77 W.C.D. at 124. Dr. Chanbour had adequate foundation for his opinions, and the compensation judge did not abuse her discretion in adopting his opinions.
At the close of hearing, counsel for the employer and insurer raised the defense that compensability for the employee’s eye injury was precluded by the prohibited act doctrine.[11] Specifically, they argue that the employee’s failure to wear safety goggles on October 5, 2022, while removing drywall was a prohibited act. It is their position that the compensation judge erred in finding that the employee’s injury is not precluded by the prohibited act doctrine and that the finding on that issue must be reversed. We disagree.
The rule that an employee may be precluded from receiving workers’ compensation benefits if the injury was the result of engaging in an act prohibited by the employer is found in case law rather than statute. Keltner v. Spartan Staffing, 77 W.C.D. 755 (W.C.C.A. 2017). The Minnesota Supreme Court has held that “where an employer expressly prohibits the doing of a certain specific act, the disregard of which is not reasonably foreseeable to the employer, a violation thereof takes the employee outside the scope of his employment and injuries resulting therefrom are not compensable even though the act might be considered to be in furtherance of the employee’s business.” Bartley v. C-H Riding Stables, Inc., 296 Minn. 115, 120, 206 N.W.2d 660, 663, 26 W.C.D. 675, 679-80 (1973). In Hassan v. Spherion, 63 W.C.D. 491 (W.C.C.A. 2003), this court set out six factors to consider in reaching a determination as to whether the doctrine applies. These factors are:
The compensation judge analyzed each of these elements in her memorandum and concluded that the employer and insurer did not show, by credible evidence, that the employer prohibited employees from performing all work on jobsites without goggles, or that a prohibition against working without goggles was customarily observed, or that the employer took reasonable steps to enforce the prohibition. This was based, in part, on the fact that the accident investigation form simply indicated that proper eye protection was discussed, that the form was not signed, and that “proper eye protection” was not defined. (Ex. 8.)
In addition to this assessment of the Hassan factors, the compensation judge’s finding that the employee’s claims are not precluded by the prohibited act doctrine is also supported by the fact that the employee’s act of performing his job duty, specifically taking down drywall, was not a prohibited act. Taking down drywall was a permissible task; in fact, it was a required task on his date of injury. Even if taking down drywall without protective eye gear was a violation of the employer’s policy, performing a permissible act in an impermissible manner does not bar an employee from receiving benefits. Prentice v. Twin City Wholesale Grocery, 202 Minn. 455, 278 N.W. 895 (1935); Bartley, 206 N.W.2d 660, 26 W.C.D. 675.[12] In this case, since it was the manner in which the employee was accomplishing a legitimate goal that was prohibited, and not the act itself, the prohibited act doctrine does not apply and does not preclude the employee from receiving benefits.
The compensation judge found the employee’s earnings to be irregular and utilized the statutory formula set forth in Minn. Stat. § 176.011, subd. 18, to determine the employee’s weekly wage. That statute provides that an employee’s weekly wage is arrived at by first determining the daily wage, as defined in Minn. Stat. § 176.011, subd. 8a. Under that provision, if the daily wage of the employee is irregular or difficult to determine, “the daily wage shall be computed by dividing the total amount of wages, vacation pay, and holiday pay the employee actually earned in such employment in the last 26 weeks, by the total number of days in which such wages, vacation pay, and holiday pay was earned . . . .” Id. The weekly wage is then calculated by multiplying the employee’s daily wage by the number of days and fractional days normally worked. Minn. Stat. § 176.011, subd. 18. The employer and insurer argue that the employee’s wages were not in fact irregular and that this analysis does not apply. We disagree.
Variations from regular hours of employment due to sick leave, legal holidays, and vacation are not a basis for determining the employee’s wages are irregular. Valentine v. Anderson Trucking Serv., 276 N.W.2d 649, 31 W.C.D. 379 (Minn. 1979). Fluctuations in income due to variations in workload can result in irregular wages. Flaskamp v. Northwest Airlines, No. WC06-249 (W.C.C.A. May 1, 2007). In this case, the employee’s weekly pay included hourly pay, overtime earnings and “after hours bonus pay”. (Ex. 11.) Each of these payments varied from one pay period to the next. In fact, no two of the employee’s pay periods resulted in the same net pay. The employee worked two to thirteen hours per day. He also worked from four to six days per week. There is no evidence that the difference in the hours worked per week were due only to holidays or vacation. As such, the compensation judge’s finding that the employee’s wages were irregular is affirmed.
The employer and insurer also argue that the compensation judge’s AWW calculation is incorrect, as she included the employee’s wages through his date of injury. As the employee was injured mid-day, they argue, his earnings from that day should not be included. However, the evidence showed that the employee worked seven hours that day, as he did the day before, and that his earnings that day were not affected by the injury. As such, it was reasonable for the compensation judge to include the earnings from that day. The statutory method for calculating the employee’s wage is reasonable and accurately reflects the lost earning capacity, and we affirm.
[1] The employee has worn contact lenses since he was 16 or 17 years old. He wears daily or monthly lenses, depending upon cost. He testified that when he first started wearing contact lenses, he would occasionally sleep in them.
[2] At the hearing, the employee denied sleeping in his contact lenses on October 4, 2022, and did not recall giving that history to his providers.
[3] Dr. Engman attributed the employee’s pre-injury history of an eye irritation in April 2022 to poor contact lens hygiene, but it is clear from the record that the April 2022 incident was work-related and only incidentally related to contact lens use. (Exs. 1, 3, 8.)
[4] M Health Fairview Eye Clinic has been part of the University of Minnesota Medical Center since their merger in 1997.
[5] The employee saw several providers at M Health Fairview Eye Clinic initially, but has treated primarily with Dr. Chanbour since November 11, 2022. (Ex. 7.)
[6] Although the employee had earnings prior to the pay period beginning July 9, 2022, the parties agreed to use earnings beginning with that pay period as the employee received a raise to $24 per hour during that pay period. (Exs. H, 11.)
[7] The employee’s testimony regarding whether he slept in his contacts, what types of contacts he wore, and the fact that he did not tell his first three medical providers about drywall getting into his eye are a few of the inconsistencies noted by the appellants.
[8] The compensation judge specifically found the employee’s testimony credible on these issues in Findings 2, 4, 6, 7, 9, and 12.
[9] Dille v. Knox Lumber/Div. of Southwest Forest, 452 N.W.2d 679, 680, 42 W.C.D. 819, 821 (Minn. 1990); Tolzmann v. McCombs-Knutson Assocs., 447 N.W.2d 196, 42 W.C.D. 421 (Minn. 1989); Brennan v. Joseph G. Brennan, M.D., P.A., 425 N.W.2d 837, 41 W.C.D. 79 (Minn. 1988) (citing Spilman v. Morey Fish Co., 270 N.W.2d 781, 31 W.C.D. 187 (Minn. 1978)).
[10] For example, one of Dr. Chanbour’s clinic notes states “[s]lept in his monthly CLs 10/4/22 but was not wearing them 10/5/22.” (Ex. 7.)
[11] The late assertion of the prohibited act defense was attributed to the differences between the employee’s testimony regarding PPE use at the hearing and the employee’s testimony in a pretrial deposition.
[12] In Prentice, the Minnesota Supreme Court held that an injury is compensable even when the employee’s act was in violation of orders or directions if the employee was still within the sphere or scope of employment. In determining whether the violation brought the employee outside of the sphere of employment, the distinction was made between the performance of authorized acts in a prohibited manner and the performance of prohibited acts.