Lepping v. HAMMERS CONSTRUCTION COMPANY
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Lepping v. HAMMERS CONSTRUCTION COMPANY
Dissenting Opinion
(dissenting).
Two commissioners of the Workers’ Compensation Board (now the Worker’s Compensation Court of Appeals) have reversed the determination of the compensation judge with the observation that “[w]e have no reason to doubt the claimant’s veracity.” I respectfully submit that on this record there was no substantial basis for reversing the findings of the judge who heard and saw the witnesses and was in a better position to assess the veracity of the claimant than twas the board. This is a case where, in my opinion, the evidence as a matter of law compelled the conclusions reached by the compensation judge.
The employee, Kurt Lepping, testified that on ¡January 7,1974, the scaffold on which he was working for the employer was bumped by a backhoe which caused him to fall head first into the bucket, injuring his left eyebrow. He made no complaint of any injury to his eye to either his employer or his co-employees, none of the whom observed any such injury. He continued to work until January 11, when he claims to have been laid off, although the employer asserted he simply did not show up for work.
The employee was originally treated by his own doctor, Dr. Mark LeRud, who had 3 days prior to the injury treated the em
“I conclude upon this record that trauma has not been reasonably established, either factually or by medical testimony, as the probable cause of employee’s optic neuritis of his left eye. In so doing, I accept the medical opinions of Dr. LeRud, Dr. Colliton and Dr. Harrington.”
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“* * * The evidence does not reasonably establish that employee did, in fact, fall on January 7,1974, and strike his left eye*379 brow on the rim of the backhoe bucket. The testimony of several eyewitnesses to this claimed occurrence contradicts employee’s testimony and results in a substantial doubt in my mind as to exactly what did happen to employee when the scaffolding was jarred.”
$ $ $ ‡ ‡
“If employee did sustain a significant blow to his left eyebrow when he fell sufficient to cause immediate pain, soreness and redness in the area of his left eye as he alleges, it seems to me that he would have mentioned the incident to someone at the time. He did not.”
Where the testimony of the employee is totally unsupported, as in this case, and all of the evidence including those of disinterested co-employees contradicts and impeaches the employee’s version, and the employee’s own doctor, in addition to the other doctors, finds no evidence of trauma, it is, in my opinion, an abdication of the fact-finding function of the board to reject out of hand all of the evidence which militates against the employee’s position.
I would sustain the findings of the compensation judge.
Opinion of the Court
Relators seek review of a unanimous decision of the Workers’ Compensation Board (now the Worker’s Compensation Court of Appeals) reversing the compensation judge’s finding as to causation and awarding the employee benefits for temporary
A review of the record reveals that the board had before it credible evidence that the employee’s disability was causally related to his employment. Findings of the board upon questions of fact will not be disturbed unless they are manifestly contrary to the evidence. Grgurich v. Sears, Roebuck & Co. 301 Minn. 291, 223 N. W. 2d 120 (1974).
Respondent is allowed $350 attorneys fees.
Affirmed.
Reference
- Full Case Name
- Kurt M. Lepping v. Hammers Construction Company and Another
- Cited By
- 2 cases
- Status
- Published