Folstrom v. Northgate Liquors, et. al, No. WC17-6066 (W.C.C.A. November 9, 2017).
Lachlan Folstrom (“employee”) was hired as a cashier and stocker at Northgate Liquors (“employer”) in April 2015. His medical history included a neck fusion 18 years before he was hired and diabetes mellitus for 25 years. The employee was involved in a motor vehicle accident in January 2015; he did not suffer any disability that prevented him from working for the employer and did not have any restrictions.
On January 14, 2016, the employee bent down to move a keg of beer, and felt a pop and burning sensation in the middle of his low back. The employee testified that initially, he called Allina Coon Rapids Clinic and requested pain medication because he had no insurance. A few days later, he was seen by a doctor and was taken off of work. At that time, he complained of bilateral low back pain, numbness in his legs and toes and an inability to stand or sit. The employer and its workers’ compensation insurer admitted liability and paid benefits.
The employee treated with Dr. David Kraker, an orthopedic surgeon. Dr. Kranker initially diagnosed the employee with lumbar spinal stenosis and later with a sprain of the right hip. Dr. Kraker eventually referred the employee to Dr. David Palmer for evaluation of his hip and buttock pain. Dr. Palmer saw the employee and noted that the employee hurt his hip lifting kegs of beer at work. Dr. Palmer diagnosed the condition as a femoral acetabular impingement of the right hip. Dr. Palmer also recommended a right hip arthroscopy with CAM resection.
Dr. Mark Friedland performed an independent medical examination of the employee on behalf of the employer and insurer. Dr. Friedland opined that the employee’s hip pain was not related to the January 14, 2016 work injury but rather was related to the employee’s chronic obesity and deconditioning as well as the motor vehicle accident of January 2015. He diagnosed the employee’s condition as a lumbosacral strain/sprain which had fully resolved and required no restrictions. He concluded the employee reached Maximum Medical Improvement as of June 28, 2016.
The employer and insurer filed a Notice of Intention to Discontinue and a Rehabilitation Request seeking termination of vocational rehabilitation benefits. The employee filed an Objection to Discontinuance. The NOID and the Rehabilitation Request were consolidated and heard before a workers’ compensation judge. The judge outlined the issues to include the nature and extent of the employee’s injuries, entitlement to wage loss, MMI and whether vocational rehabilitation benefits should be terminated. At hearing, the employer and insurer sought admission of evidence related to a prior criminal conviction; the employee objected to its admission and the compensation judge sustained the objection. The compensation judge found that the January 14, 2016, low back injury was not a temporary aggravation and that the employee suffered a work-related injury to the hip. The compensation judge also found that the employee was entitled to wage loss benefits from December 2, 2016, that the employee had not reached MMI and that vocational rehabilitation should not be terminated. The employer and insurer appealed.
On appeal, the employer and insurer argued that the employee’s lack of credibility warranted a reversal of the compensation judge’s findings. The employer and insurer also argued that the compensation judge erred in adopting the employee’s treating physician’s opinion over that of the independent medical examiner because it lacked foundation. Lastly, the employer and insurer argued that the compensation judge erred in disallowing evidence regarding the employee’s prior criminal conviction.
The Workers’ Compensation Court of Appeals (“WCCA”) affirmed the compensation judge’s findings. With regard to medical expert foundation, the WCCA stated that the facts upon which an expert relies for an opinion must be supported by the evidence. “An expert need not be provided with every possible fact, but must have enough facts to form a reasonable opinion that is not based on speculation or conjecture.” citing Gianotti v. Indep. Sch. Dist. 152, 899 N.W.2d 796, 77. The WCCA noted that the employee’s treating physician took a history from the employee, examined the employee and reviewed medical records. The WCCA concluded the treating physician had enough facts to form a reasonable opinion and that opinion did not appear to be based on speculation or conjecture. The WCCA reviewed the issue of admission of evidence of the employee’s prior criminal conviction de novo. At hearing, the employee testified that he was “not an aggressive person” so the employer and insurer sought to introduce evidence of the employee’s prior criminal conviction to establish that he was an aggressive person in order to establish that the employee’s testimony was inconsistent and unreliable. Findings of fact must be based upon relevant and material evidence only. Minn. Stat. § 176.411. The WCCA found that the employee’s prior criminal conviction for a misdemeanor offense was not relevant and was more prejudicial than probative. The WCCA also noted that the employer’s offer of proof did not persuasively address how the conviction “involved dishonesty or false statement.” The WCCA found that the compensation judge’s disallowance of evidence of the employee’s prior criminal conviction was not an abuse of discretion. Therefore, the WCCA affirmed the compensation judge’s Findings and Order.