STAR M. ANDERSON, Employee, v. PARK NICOLLET HEALTH SERVS., SELF-INSURED/BERKLEY RISK ADM=RS/GALLAGHER BASSET SERVS., INC., Employer-Appellant.
WORKERS= COMPENSATION COURT OF APPEALS
MAY 6, 2002
NOTICE OF INJURY - SUBSTANTIAL EVIDENCE. Substantial evidence, including the employee=s testimony and medical records, supported the compensation judge=s decision that the employee gave timely notice of injury.
Determined by Wilson, J., Stofferahn, J., and Pederson, J.
Compensation Judge: Jennifer Patterson.
DEBRA A. WILSON, Judge
The employer appeals from the compensation judge=s finding that the employee=s claim is not barred by the notice requirements of Minn. Stat. ' 176.141. We affirm.
The employee was employed as a certified registered nurse anesthetist for 27 years, through May 2000, working for over twenty years at the same hospital, which had three different owners and three different names during that period. During 1999, the employee typically worked an eight-hour shift but was sometimes assigned to a sixteen-hour shift and occasionally to a twenty-four-hour shift. During that same year, the employee averaged ten to twenty hours of overtime each week, and her work involved repetitive use of her right hand.
In late 1999, the employee experienced occasional numbness and tingling in her thumb and the first and second fingers on her right hand. By November of 1999, the employee would experience numbness and tingling within minutes of working with her first patient of the day. The rhythmic squeezing necessitated by hand ventilation was particularly aggravating to her right hand, wrist, and forearm symptoms. The employee also noted symptoms while driving, reading, playing the piano, and curling her hair. One of the doctors the employee worked with advised her to see a hand specialist.
The employee first treated with Dr. Jeffrey Husband at the Park Nicollet Clinic on January 26, 2000. Dr. Husband diagnosed right carpal tunnel syndrome and recommended right carpal tunnel release, which was performed on February 15, 2000. Dr. Husband gave the employee a form releasing her from working between February 15 and March 22, 2000. When the employee took the form to the employee health nurse at her employer, Maureen Stanley, Ms. Stanley asked the employee whether the absence was work-related. The employee told Ms. Stanley that she was not sure because no doctor had said that it was.
On March 23, 2000, following the carpal tunnel release, the employee returned to work at her regular duties, although, over time, her right hand felt weak and her symptoms returned and worsened. The employee also returned to the Park Nicollet Clinic for treatment on March 23, 2000. In the progress notes completed on that date, the cause of injury is listed as Apossibly due to 27 yrs in anesthology [sic].@
On April 4, 2000, the employee completed a personnel termination information form, indicating to the employer that it was her intention to resign as of May 4, 2000. The reason given for the resignation was ARetirement.@ When she spoke with her supervisor, Beverly Smiley, about her resignation, the employee made no complaints of physical difficulties. The employee last worked for the employer on May 6, 2000, and began work at Dana=s, a women=s clothing store, on May 15, 2000.
On May 23, 2000, the employee signed a retainer agreement with attorney Timothy Jung, and on June 1, 2000, Mr. Jung wrote to the employer, giving them formal notice of injury with regard to a right carpal tunnel syndrome injury sustained on or about February 15, 2000. He asked the employer to complete a First Report of Injury, but none was prepared.
On October 13, 2000, the employee filed a claim petition, seeking temporary total, temporary partial, and permanent partial disability benefits, along with medical benefits and a rehabilitation consultation. The employer answered, denying primary liability and notice. The matter proceeded to hearing on July 24, 2001, at which time issues included whether the employee had given legally sufficient notice of the claimed injury.
In November of 2000, the employee began treatment with Dr. Thomas M. Walsh. Dr. Walsh informed the employee that her carpal tunnel syndrome was caused by years of doing anesthesia work.
The claim petition proceeded to hearing, and, in findings and order filed on September 12, 2001, the compensation judge found that the employee had sustained a minute trauma injury to her right hand and wrist that was causally related to her work with the employer and culminated in disability on February 15, 2000. The compensation judge also found that the employee had given notice of the work injury more than thirty days after either her first doctor=s appointment or her first day of missed work, but that the delay was due to inadvertence and ignorance of the law, that the employer had not shown prejudice, and that the employee=s claim was not barred by the statutory notice provisions. The employer appeals from the judge=s findings as to notice of injury.
STANDARD OF REVIEW
In reviewing cases on appeal, the Workers= Compensation Court of Appeals must determine whether Athe 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 (1992). Substantial evidence supports the findings if, in the context of the entire record, Athey 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, A[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.@ Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975). Findings of fact should not be disturbed, even though the reviewing court might disagree with them, Aunless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.@ Id.
Minn. Stat. ' 176.141 provides, in relevant part:
If the notice is given within 30 days from the occurrence of the injury, no want, failure or inaccuracy of a notice shall be a bar to obtaining compensation . . . . If the notice is given . . . within 180 days, and if the employee . . . shows that failure to give prior notice was due to the employee=s . . . [m]istake, inadvertence, [or] ignorance of fact or law . . . , then compensation may be allowed, unless the employer shows prejudice by failure to receive the notice, in which case the amount of compensation shall be reduced by a sum which fairly represents the prejudice shown. Unless knowledge is obtained or written notice given within 180 days after the occurrence of the injury no compensation shall be allowed . . . .
The time period for giving notice does not begin to run until an employee, as a reasonable person, recognizes the nature, seriousness, and probable compensable character of the injury. Issacson v. Minnetonka, Inc., 411 N.W.2d 865, 40 W.C.D. 270 (Minn. 1987). In the present case, the employee sustained a Gillette-type injury culminating on February 15, 2000. Formal notice was not given to the employer until the employee=s attorney wrote them a letter on June 1, 2000.
While the compensation judge made several findings relevant to the notice issue, she did not make a specific finding as to what date the employee recognized the nature, seriousness, and probable compensable character of her condition. However, in this particular case, because the judge=s findings and memorandum support only one conclusion, a remand is unnecessary.
In her memorandum, the compensation judge explained, A[t]he employee had never heard of a minute trauma injury until she consulted an attorney. . . . The employee asked Dr. Husband if he thought her work contributed to her CTS and he told her he did not think so.@ When coupled with the judge=s determination that the employee=s testimony was credible and that the employee did not attempt to conceal her condition from the employer, we can only conclude that the compensation judge implicitly found that the employee first had knowledge sufficient to commence the notice period on May 23, 2000, the date she retained her attorney. For example, the judge found:
10. . . . The employee=s testimony that Dr. Husband told her [on January 26, 2000] to use health insurance to pay for surgery and not claim she had a work injury in the form of right CTS was credible and was accepted.
11. The employee=s testimony that she had never heard of a minute trauma Gillette injury until her attorney and Dr. Walsh explained minute trauma injuries was credible.
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16. As of May 23, when she retained attorney Jung, and June 1, 2000, when the notice letter was written, no doctor had expressed the opinion that the employee=s work was a substantial contributing factor to the development of right CTS. In February 2000, she had answered honestly that she did not know whether the symptoms were work-related when she was asked about this by Maureen Stanley. . . .There is no evidence of record that the employee attempted to conceal her condition from her employer or that she attempted to give inaccurate histories to her treating doctor. . . .
The issue then becomes whether substantial evidence supports the judge=s apparent conclusion as to when the notice period began to run. The employee testified that when she first saw Dr. Husband on January 26, 2000, she told him that work activities bothered her right hand but that Dr. Husband said her condition was not work related. No doctor opined that the employee=s carpal tunnel syndrome was work-related until Dr. Walsh rendered that opinion verbally to the employee in November of 2000, five months after her attorney gave the employer written notice. The employee testified that, during the period of her employment by the employer, she did not understand that injury due to repetitive minute trauma could qualify as a compensable workers= compensation claim. The employee=s testimony and medical records provide substantial evidence to support the judge=s conclusion.
The employer contends that the medical history on Dr. Husband=s March 23, 2000, chart note indicates that the cause of the injury was possibly due to 27 years in anesthesiology and that the employee admitted that she believed that her right hand condition was work-related. As such, the employer suggests, the employee was obligated to report her injury within thirty days of March 23, 2000, and her failure to do so should bar her claims. The employee=s testimony, however, was that she believed her condition Acould possibly be@ related to her work and that she had already asked Dr. Husband once whether he thought her work activities caused her carpal tunnel syndrome, and the doctor said no. The employee further testified that no doctor told her that the work activities were causally related to her carpal tunnel syndrome until November of 2000. Finally, the March 23, 2000, entry attributed to Dr. Husband appears in reality to be a physical therapy progress note, and the name of the provider is indecipherable.
The judge went on to analyze this case as if notice was required within thirty days of either the employee=s first doctor=s appointment or her first day of time off work. The parties, however, had stipulated that February 15, 2000, was the date of disablement for purposes of establishing a date of injury, and notice of injury can hardly be required prior to the injury date. In that substantial evidence supports the judge=s implicit finding that the employee did not have knowledge of the compensable nature of her injury until May 23, 2000, and in that notice was given within thirty days of that date, we need not consider the questions of inadvertence, ignorance of the law, or prejudice. The judge=s finding that the employee gave timely notice of the February 15, 2000, work injury is affirmed.
 See Gillette v. Harold, Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960).
 While the medical records from that date do not contain that history, the compensation judge found the employee=s testimony to be credible. Assessment of a witness=s credibility is the unique function of the trier of fact. Even v. Kraft, Inc., 445 N.W.2d 831, 42 W.C.D. 220 (Minn. 1989).
 The judge found,
[t]he employee=s failure to give notice of a claim for a work injury within 30 days of either her first doctor=s appointment or her first day of missed time from work was due to inadvertence and ignorance of the law. The employer has neither claimed nor shown actual prejudice from the failure to report a work injury until the June 1, 2000 notice letter. The employee=s claim is not barred by the notice requirements of Minn. Stat. '176.141.