EVIDENCE – ADMISSIBILITY. The compensation judge’s admission of a witness’s deposition transcript into evidence was not prejudicial to the employee and was not an abuse of the compensation judge’s discretion.
Compensation Judge: Grant Hartman
Attorneys: Kirk C. Thompson, Kirk C. Thompson Law Office, P.A., Minneapolis, Minnesota, for the Appellant. Anderew Grimsrud, Aafedt, Forde, Gray, Monson & Hager, P.A., Minneapolis, Minnesota, for the Respondent.
Affirmed.
THOMAS J. CHRISTENSON, Judge
The employee appeals from the denial of her claim for benefits, alleging that the compensation judge committed reversible error in admitting witness deposition testimony and that the findings are clearly erroneous and not supported by substantial evidence. We affirm.
The employee, Latasha Tolbert, was employed as a certified nursing assistant by Ramsey County Care Center. She alleged that on January 5, 2017, she injured her cervical spine and left upper extremity when her arm was yanked while dressing a patient, causing a popping sensation and pain. According to the employee, she was later carrying a cup to a patient and the cup slipped from her hand when her left arm went numb.[1]
That same day, the employee went to the emergency room with complaints of two months of left arm tingling which, she reported, was now painful. Her left hand felt weak. Two weeks earlier, she had noticed intermittent episodes of tingling down her left arm, and one week earlier, she had developed sharp, burning, and constant pain. She had experienced mild neck pain in the past but was now having more pain at work. The employee’s history at this visit does not mention an incident in which the employee’s arm was yanked causing injury while working with a patient. (Ex. 6.)
On examination, the employee’s left arm range of motion was limited due to pain. Her grip strength on the left was 3/5, and 5/5 on the right. An MRI was done of the cervical spine, which revealed minor left and mild right facet degeneration at C4-5, central and right paracentral protrusion and joint spurring at C5-6, right-sided disc extrusion contacting and deforming the right ventral spinal cord, and left-sided protrusion causing moderate left foraminal stenosis at C6-7. No stenosis or protrusion was seen at C7-T1. Because symptoms were progressing, the employee was placed on a Medrol Dosepack and was told to follow-up with a spine specialist.
The following day, the employee was seen for a consult at HealthEast Spine Center by Ammar Khashan, PA-C. The note states that the employee did not recall trauma or injury to her neck or left shoulder, but one year prior, she had experienced left-sided neck pain, numbness, and tingling radiating into the left upper trapezius, left shoulder, arm, and hand. Physical therapy, Flexeril, and gabapentin were prescribed for the employee’s left-sided neck pain. According to a January 10, 2017, physical therapy note, the employee’s symptoms began six months ago and she had denied any prior history of neck pain or injury. (Ex. 6.)
On January 18, 2017, the employee was seen for follow-up by PA-C Khashan with continued left-sided neck pain with numbness and tingling in the left upper extremity. It was believed that a disc protrusion at C6-7 revealed on the MRI scan was likely causing her symptoms. The employee was to continue with physical therapy and gabapentin and was to return to full duty without restrictions on January 23, 2017.
The employee attended physical therapy on January 25, 2017. At this visit, her cervical range of motion was pain free. After missing a second visit, the employee was discharged.
The employee did not treat for similar symptoms for more than two years. In the meantime, the employee was involved in an auto accident while working as a courier for another employer on July 12, 2017. She suffered an injury to her low back and bilateral thighs. In her deposition taken regarding this incident, the employee testified that this was her only work-related injury and denied any injuries at Ramsey County Care Center. She testified that while working for Ramsey County Care Center, she had sought medical care for tingling in her left arm, but that this condition had resolved. (Ex. 7.) The employee settled her claim against this employer. (Ex. 9.)
On February 16, 2019, the employee presented at the emergency room complaining of recent left arm numbness and tingling. She reported that her symptoms had progressively worsened over the last three days and were similar to those she had suffered in 2017. An MRI showed moderate foraminal stenosis secondary to uncinate spurring at C5-6, moderate right paracentral disc extrusion causing mild to moderate central canal stenosis, moderate left neural foraminal narrowing at C6-7, and moderate disc extrusion in the right lateral recess which could affect the exiting right C8 nerve root. A surgical consultation was recommended.
The employee was evaluated by Dr. Nicholas Wills of Summit Orthopedics on February 21, 2019. MRI scan results were reviewed and both surgical and non-surgical options were discussed. The employee elected to proceed with a two-level disc arthroplasty at C5-6 and C6-7.
On March 19, 2019, the employee was seen by Dr. Elizabeth Bennett, a neurosurgeon. The employee reported that her left arm tingling began prior to January 2017, but that in January 2017, her symptoms worsened due to her work duties. Dr. Bennett assessed the employee with multi-level cervical stenosis and recommended a laminoplasty procedure.
On March 22, 2019, the employee underwent a cervical laminoplasty at C4-6 and left cervical foraminotomy at C6-7 performed by Dr. Bennett. Following the surgery, the employee’s left arm weakness and pain worsened after some initial improvement. Dr. Bennett then performed a C5-6 and C6-7 decompression and fusion with plate on July 29, 2019. The employee continued to have symptoms of left-hand numbness and difficulty with repetitive left arm motions. Physical therapy continued, and the employee was seen regularly in follow-up by Dr. Bennett.
The employee was seen by Dr. Terry Hood for an independent medical examination on May 23, 2019. Dr. Hood issued a report dated June 18, 2019, noting the employee’s complaints of neck and left arm pain. On examination, Dr. Hood found weakness in the employee’s left deltoid, triceps, and grip, as well as decreased touch over the first and second digits of the left hand. Dr. Hood opined that the employee had degenerative cervical disc disease, multilevel protrusion, and foraminal stenosis caused by obesity and a history of large breasts which had required reduction surgery. (Ex. 1.) He further opined that the work event of January 5, 2017, was not a substantial contributing factor to the employee’s cervical condition, nor did the employee’s work activities result in her sustaining a Gillette[2] injury.
A report was issued by Dr. Bennett dated March 6, 2020. In her report, Dr. Bennett opined that the cause of the employee’s cervical condition may be multifactorial, including genetics, obesity, large breasts, and a cumulative effect of the employee’s work activities. (Ex. A.) Based upon the employee’s history that she struggled to assist a patient and heard a ‘pop’ in her neck, Dr. Bennett opined that the employee aggravated her preexisting cervical stenosis on January 5, 2017. Dr. Bennett also opined that the employee was not at maximum medical improvement (MMI), continued to require physical therapy, and required restrictions of lifting no more than 25 pounds and avoiding extreme cervical range of motion.
On September 27, 2022, Dr. Robert Wengler saw the employee for an independent medical examination. The employee presented with discogenic cervical spine pain and radicular symptoms into both upper extremities. Dr. Wengler opined that the cervical spine and left upper extremity injuries occurred on January 5, 2017, the disc herniation injury having occurred as a result of the employee being yanked while assisting a patient to dress. (Ex. B.) Dr. Wengler further opined that the employee was not at MMI because surgery had been proposed to address an extruded fragment at C7-T1 seen on the June 2021 MRI scan. Dr. Wengler issued no restrictions as he considered the employee totally disabled. In a report dated December 16, 2022, Dr. Wengler confirmed his opinion that the employee’s ongoing symptoms, need for medical, diagnostic, and surgical treatment, including the proposed procedure at C7-T1, were causally related to the employee’s January 5, 2017, work injury.
The employee filed a claim petition on February 28, 2019, alleging injuries to her cervical spine and left upper extremity, suffered on January 5, 2017. She claimed entitlement to temporary total disability, medical, and rehabilitation benefits, as well as penalties. An addendum to the claim petition asserted that Jolene Magee, Director of Nursing for the employer, had accompanied the employee to the emergency room on January 5, 2017.
On January 9, 2020, Jolene Magee submitted for a deposition noticed by the employee’s former counsel. (Ex. 8.) Ms. Magee was duly sworn and was examined under oath for approximately one hour and twenty minutes. She testified that she had retired from the employer on April 3, 2017. She had no recollection of the employee being injured at the employer or speaking with the employee about an injury on January 5, 2017. Ms. Magee did not remember any incident report having been completed relating to the employee’s claimed work injury, nor having received any doctor notes relating to the employee’s time off after January 5, 2017. Finally, Ms. Magee denied accompanying the employee to the emergency room.
A hearing on the employee’s claim petition was held on June 29, 2023. The compensation judge heard testimony from the employee, as well as from Dr. Wengler on her behalf, and from two employer witnesses. Exhibits were offered and received into evidence, including the 2020 deposition transcript of Ms. Magee, over counsel’s objection.[3]
In his September 5, 2023, Findings and Order, the compensation judge denied the employee’s claims in their entirety, finding that the employee did not sustain a specific or Gillette injury to her cervical spine or left arm on January 5, 2017. The employee appeals the compensation judge’s decision.
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 asserts that it was reversible error for the compensation judge to admit into evidence the deposition transcript of Ms. Magee as it was inadmissible hearsay and violated Minn. Stat. § 176.411, Minn. R. 1420.2200, subp. 2B, and Minn. R. 1420.2900. She further asserts that the Findings and Order is clearly erroneous and not supported by substantial evidence and violates the employee’s right to due process under the Minnesota Constitution. The employee seeks reversal of the decision and a remand for hearing before a different compensation judge.[4]
The compensation judge found that the employee did not sustain an injury at work on January 5, 2017, either specific or Gillette. He outlined various factors upon which this decision was based, including the lack of history in the contemporaneous medical records of a supposedly severe yanking incident causing injury, the delay in medical treatment between January 2017 and February 2019, the inconsistent, contradictory, and unreliable testimony given by the employee, and the persuasive opinion of Dr. Hood. (Mem. at 7.)
This court’s authority to review a compensation judge’s factual determination on appeal is established by statute as interpreted by the Minnesota Supreme Court. The role of this court, when reviewing contested questions of fact, is to determine whether there is substantial evidence in the record as a whole to support the decision of the compensation judge. Minn. Stat. § 176.421, subd. 1. This court must give due weight to the compensation judge’s opportunity to assess the credibility of witnesses, and where there is conflicting evidence or where more than one inference or conclusion could reasonably be drawn from the evidence, this court must uphold the findings of the compensation judge. Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984); Redgate v. Sroga's Standard Serv., 421 N.W.2d 729, 40 W.C.D. 948 (Minn. 1988).
In this case, the key issue - - causation - - involves a fact determination. It is the responsibility of the compensation judge to resolve factual disputes. Felton v. Anton Chevrolet, 513 N.W.2d 457, 50 W.C.D. 181 (Minn. 1994). The employee had the burden of proving, by a preponderance of the evidence, a causal relationship between her employment and the claimed injury to her cervical spine and left upper extremity. Fischer v. Saga Corp., 463 N.W.2d 501, 43 W.C.D. 559 (Minn. 1990); Dille v. Knox Lumber Co., 452 N.W.2d 679, 42 W.C.D. 819 (Minn. 1990). The compensation judge, having heard the testimony of the employee and witnesses, and having reviewed the documentary evidence, concluded that the employee failed to meet her burden of proof.
A key component to the compensation judge’s decision was his evaluation of the employee’s credibility as a witness. There was contradictory testimony from the employee regarding the events relating to her claimed work injury. The medical records from January 5, 2017, forward regarding the employee’s claim of a work injury were equivocal and necessarily relied on the history of injury provided by the employee to her medical providers. This court is required to give deference to the compensation judge’s assessment of witnesses’ credibility. Tolzmann v. McCombs Knutson Assocs., 447 N.W.2d 196, 42 W.C.D. 421 (Minn. 1989). The judge simply did not believe the employee’s testimony regarding the circumstances of the January 5, 2017, incident or the nature of the employee’s cervical spine and left upper extremity conditions after that date. It was not unreasonable for the compensation judge to reject the employee’s claim based on his conclusion as to the employee’s credibility. See Tuomela v. Reserve Mining Co., 299 Minn. 203, 216 N.W.2d 638, 27 W.C.D. 312 (1974); Flansburg v. Giza Plumbing & Heating, 284 Minn. 199, 169 N.W.2d 744, 25 W.C.D. 3 (1969).
Further, questions of medical causation fall within the province of the compensation judge. Felton v. Anton Chevrolet, 513 N.W.2d 457, 50 W.C.D. 181 (Minn. 1994). It is the function of the compensation judge to resolve conflicts in expert medical testimony, and the choice of expert opinion is usually upheld unless the facts assumed by the expert in rendering the opinion are not supported by the evidence. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).
The compensation judge in this case was presented with conflicting medical expert opinions from Dr. Hood and Dr. Wengler. The compensation judge’s resolution of the issue of medical causation in the case necessarily rested on his choice between the medical opinions. The judge adopted Dr. Hood’s opinion over that of Dr. Wengler. Because Dr. Wengler’s supporting medical opinion was premised on the assumption that the employee experienced cervical spine and left upper extremity symptoms after January 5, 2017, an assumption rejected by the judge, it was reasonable for the judge to reject the medical opinions issued by Dr. Wengler. To the extent that the medical evidence depends on the credibility of the employee’s history provided to the various medical examiners, we defer to the compensation judge’s express finding regarding credibility. See Brennan v. Joseph G. Brennan, M.D., 425 N.W.2d 837, 839-40, 41 W.C.D. 79, 82 (Minn. 1988) (assessment of a witness’s credibility is the unique function of the trier of fact) (citing Spillman v. Morey Fish Co., 270 N.W.2d 781, 31 W.C.D. 187 (Minn. 1978)). Considering the expert medical opinion and other evidence of record, we affirm the compensation judge’s denial of the employee’s claim for benefits. See Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).
On appeal, the employee argues that the compensation judge’s finding that her testimony was not credible is based upon the admission of Ms. Magee’s deposition transcript into evidence. According to the employee, the admission of Ms. Magee’s deposition transcript was clearly erroneous and can only be corrected by reversing the compensation judge’s decision.
The employee testified that she reported her injury to Ms. Magee on the date of the claimed injury. In contrast, Ms. Magee testified in her deposition that the employee never reported an injury to her on January 5, 2017, nor was she aware of any injury sustained by the employee during her employment with the employer. Ms. Magee’s deposition was noted and taken by the employee’s former counsel on issues relating to notice. The compensation judge admitted into evidence Ms. Magee’s deposition transcript over the employee’s objection. It is the argument of the employee that allowing Ms. Magee’s deposition transcript into evidence instead of requiring the employer to produce her for cross-examination at hearing or to provide proof of Ms. Magee’s actual and present unavailability to appear at hearing, so as to allow the employee to confront Ms. Magee with contradictory testimony, compels this court to reverse the compensation judge.
This court has long recognized that a compensation judge is given discretion in the way a hearing is administered, including evidentiary rulings. Minn. Stat. § 176.411, subd. 1, provides in pertinent part: “[A] compensation judge is bound neither by the common law or statutory rules of evidence nor by technical or formal rules of pleading or procedure. Hearsay evidence which is reliable is admissible.” See, e.g., Bey v. Oxford Prop., Inc., 481 N.W.2d 40, 46 W.C.D. 198 (Minn. 1992); Cici v. Methodist Hosp., 63 W.C.D. 421, 426 (W.C.C.A. 2003). To warrant reversal, a compensation judge’s admission of evidence must be prejudicial as well as erroneous. See Anderson v. State, Dep’t of Nat. Res., slip op. (W.C.C.A. Oct. 27, 2003); McGuire v. Merillat Indus., Inc., slip op. (W.C.C.A. July 27, 1993). On many occasions, the supreme court has expressed a policy favoring inclusion of evidence in workers’ compensation matters. See, e.g., Bey, 481 N.W.2d at 42-43, 46 W.C.D. at 201-02; Scalf v. LaSalle Convalescent Home, 481 N.W.2d 364, 366, 46 W.C.D. 283, 286 (Minn. 1992) (“the purpose of [a workers’ compensation] proceeding is disclosure of the true facts, a purpose better served by acceptance of all competent, relevant, and material evidence” than by exclusion of evidence).
The employee argues that the compensation judge had an express duty to follow Minn. Stat. § 176.411, Minn. R. 1420.2200 and 1420.2900, and Minn. R. Evid. 804 in disallowing Ms. Magee’s deposition transcript. We note that the compensation judge did not admit into evidence the deposition transcript of Ms. Magee until the employee mentioned the conversation with Ms. Magee.[5] Further, workers’ compensation proceedings are not subject to rules of evidence governing judicial courts. See Anderson, slip op. at *7; McGuire, slip op. at *6. It does not appear the judge relied solely on Ms. Magee’s deposition testimony in denying the employee’s claim such that the employee was unduly prejudiced by the admission of Ms. Magee’s deposition transcript into evidence. Under these circumstances, we find no abuse of discretion in the judge’s consideration and acceptance of Ms. Magee’s deposition transcript into evidence at hearing, which would require a reversal.
Finally, the employee also argues that the compensation judge violated the employee’s equal protection and due process rights. This court lacks jurisdiction to determine constitutional questions or to fashion an equitable remedy outside the parameters of the Workers’ Compensation Act. Quam v. State, Minn. Zoological Gardens, 391 N.W.2d 803, 39 W.C.D. 32 (Minn. 1986).
Having carefully reviewed the record, we cannot conclude that the compensation judge’s finding that the employee failed to prove she sustained a compensable injury arising out of and in the course of her employment is unsupported by substantial evidence or clearly erroneous. We must, therefore, affirm.
[1] Based upon the record submitted, it does not appear the employee returned to work for the employer after January 5, 2017.
[2] Gillette v. Harold, Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960) (holding that when a preexisting infirmity is aggravated by repetitive, minute trauma because of common and necessary job duties, the disability resulting from the aggravation is a compensable personal injury under the Workers’ Compensation Act). The question of whether a Gillette injury has been sustained primarily depends on medical evidence. Steffen v. Target Stores, 517 N.W.2d 579, 581, 50 W.C.D. 464, 467 (Minn. 1994).
[3] The compensation judge initially reserved admitting Ms. Magee’s deposition transcript into evidence based upon the objection of counsel. During his opening statement, the employee’s counsel discussed an alleged conversation between the employee and Ms. Magee in late 2022. Thereafter, the employer’s counsel re-offered the transcript into evidence as impeachment of the employee’s expected testimony. After considering arguments presented by the parties, the compensation judge admitted into evidence Ms. Magee’s deposition transcript.
[4] Minn. Stat. § 176.307 provides:
The chief administrative law judge may assign workers’ compensation cases to compensation judges using a block system type of assignment that, among other things, ensures that a case will remain with the same judge from commencement to conclusion, except that the judge must be removed from the case when: (1) a party exercises a legal right to do so; (2) the judge is incapacitated or is otherwise unable to hold a hearing; or (3) assignment of a different judge is required by section 176.106, subdivision 7; 176.238, subdivision 6; or 176.305, subdivision 1a, or the Minnesota Code of Judicial Conduct.
Under Minn. Stat. § 176.312, any party to a claim may, as a matter of right, file a petition for reassignment after receiving notice of assignment of a case to a compensation judge. The record before us contains no documentation seeking to remove the compensation judge from the block assignment.
[5] The compensation judge admitted the deposition transcript only after employee’s counsel opened the door to such testimony. We note that in Minnesota, “[d]istrict courts may permit inquiring into underlying facts when the defendant ‘opens the door.’ ‘Opening the door’ occurs when ‘one party by introducing certain material … creates in the opponent a right to respond with material that would otherwise have been inadmissible.’” State v. Valtierra, 718 N.W.2d 425 (Minn. 2006) (quoting 8 Henry W. McCarr & Jack S. Nordby, Minnesota Practice – Criminal Law and Procedure § 32.54 (3d ed. 2001)); see State v. Bailey, 732 N.W.2d 612 (Minn. 2007); State v. Gutierrez, 667 N.W.2d 426 (Minn. 2003). “The opening-the-door doctrine ‘is essentially one of fairness and common sense, based on the proposition that one party should not have an unfair advantage, and that the factfinder should not be presented with a misleading or distorted representation of reality.’” Valtierra, 718 N.W.2d at 436.