ROGER P. NELSON, Employee, v. JOHNSON BUILDERS AND DEVELOPERS, INC., and STATE FARM GROUP, Employer-Insurer, FULLERTON BLDG. SYS. and CNA INS. CO., Employer-Insurer, and FULLERTON BLDG. SYS. and U.S.F. & G., Employer-Insurer/Appellants, and HEALTHPARTNERS, INC., and PRAIRIE REHABILITATION SERVS., Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
AUGUST 27, 2002
NOTICE OF INJURY - SUBSTANTIAL EVIDENCE. Substantial evidence, including the employee=s testimony, supports the compensation judge=s finding that the employer received timely notice of a work-related injury, following a snow shoveling incident on the employer=s premises on about March 8, 1998. For purposes of notice, where the employer had timely knowledge of a work-related incident resulting in injury, it does not matter whether the employee=s disability and need for medical care was caused by a specific injury or a Gillette injury.
Determined by Johnson, C.J., Rykken, J., and Stofferahn, J.
Compensation Judge: Peggy A. Brenden.
THOMAS L. JOHNSON, Judge
Fullerton Building Systems and U.S.F. & G. appeal the compensation judge=s Finding on Remand that the employer received timely notice of a work-related injury occurring on March 8, 1998. We affirm.
Roger Nelson, the employee, began working for Fullerton Building Systems, the employer, on November 4, 1992. While working for a previous employer, Johnson Builders and Developers, and during his employment with Fullerton, the employee sustained low back injuries on September 3, 1983, July 16, 1993, and January 13, 1997, not at issue in this appeal (see below).
On or about March 8, 1998, the employee testified that he got to work about an hour early. There had just been a heavy snow and the employee stated he shoveled some of the snow away from a path leading to the back door of the employer=s premises. As he did so, he experienced low back pain in the same area as his prior injuries. The employee testified he told his supervisors, Jerome Woodbury and Delray Hoefker, about this incident. Mr. Woodbury did not recall the employee reporting to him that he had injured his back shoveling snow.
The employee sought treatment from Dr. Ebbers at the Worthington Chiropractic Clinic on March 8, 1998. The employee testified he sought treatment because of back pain following the snow shoveling incident. The doctor took the employee off work and commenced chiropractic treatments. On March 17, 1998, the employee was seen by Dr. Jorge H. Johnson, a neurosurgeon. The doctor recorded the employee=s history of recurrent low back pain about a week and a half previously while shoveling snow. The doctor reviewed an MRI scan obtained on March 12, 1998, and recommended physical therapy and weight loss. The employee returned to work with the employer on March 24, 1998, but continued to receive chiropractic treatment from Dr. Ebbers.
On June 15, 1998, the employee was examined by Dr. Mark W. Fox, in the same clinic as Dr. Johnson. Dr. Fox recommended a lumbar fusion which he performed in July 1998. By report dated April 29, 1999, Dr. Fox opined the employee=s July 16, 1993 and January 13, 1997 injuries were substantial contributing causes of the employee=s lumbar spine abnormality and subsequent surgery. The doctor further stated: AAlong with the specific injuries, I believe the type of work activities, on a repetitive, daily basis was also a contributing cause of the deterioration of his lumbar spine.@
Dr. John Dowdle examined the employee on August 14, 1999, at the request of CNA. The doctor opined the employee sustained injuries on July 16, 1993 and January 13, 1997, both of which were temporary aggravations of his underlying degenerative disc condition. Dr. Dowdle further opined the employee sustained an injury on March 8, 1998, while shoveling snow which injury was a permanent aggravation of the employee=s underlying condition.
On May 22, 2000, the employee was examined by Dr. Mark Friedland at the request of State Farm Group. The doctor opined the employee=s 1983 injury was a lumbosacral strain/sprain which resolved, the 1993 injury was permanent, and the January 1997 injury and the snow shoveling incident on March 8, 1998 were temporary exacerbations of the employee=s pre-existing lumbar degenerative disc disease. Dr. Friedland also opined the employee sustained a Gillette personal injury culminating in July 1998.
The employee filed a claim petition on May 10, 1999, claiming both a specific injury and a Gillette injury on March 8, 1998. In a Findings and Order filed January 3, 2001, the compensation judge found the employee=s personal injuries on September 3, 1983, July 16, 1993, and January 13, 1997 were temporary injuries which fully resolved. The compensation judge further found the employee sustained a Gillette injury arising out of his employment with Fullerton which culminated on or about March 8, 1998. The judge made no factual findings regarding the employee=s claim of a specific injury on March 8, 1998. The compensation judge also found the employee first knew he sustained a Gillette injury when he received Dr. Fox=s report dated April 29, 1999. Finally, the compensation judge found the employer was notified of the March 8, 1998 Gillette injury on May 10, 1999, when the employer was served with the employee=s claim petition, and found this notice was timely.
Fullerton Building Systems and U.S.F. & G. appealed the compensation judge=s finding that the employee first knew he sustained a Gillette injury on April 29, 1999, and the finding that notice to the employer on May 10, 1999 met the requirements of Minn. Stat. ' 176.141. The appellants contended the employee knew he injured his low back while shoveling snow on or about March 8, 1998. Thus, the appellants argued the employee knew or should have known by March 8, 1998 that work activities aggravated his low back condition causing disability and the need for medical treatment. Accordingly, Fullerton and U.S.F. & G. contended the employee was required to give notice to the employer within 180 days of March 8, 1998, which, they argued, he failed to do.
In a decision filed July 30, 2001, this court concluded the evidence established the employee knew or should have known by March 8, 1998 that the flare-up of his low back pain was likely related to his work activities. Accordingly, this court reversed the compensation judge=s findings regarding notice. Because the compensation judge made no finding whether the employee gave notice of the 1998 snow shoveling incident to his supervisor, the court remanded the case to the compensation judge for additional findings. By a decision filed November 14, 2001, the supreme court affirmed this court=s decision. In a Findings on Remand, the compensation judge found the employee notified his supervisor of a snow shoveling incident the day it happened in early March, 1998. The compensation judge further found the employer was Aprovided timely notice of a work-related injury (the snow shoveling incident) occurring on or about March 8, 1998.@ Fullerton and U.S.F. & G. again appeal.
Fullerton/U.S.F. & G. first contend the compensation judge=s finding that the employer received timely notice of a work-related injury (the snow shoveling incident) is unsupported by substantial evidence. They contend, based on the discrepancy between the testimony of the witnesses and the compensation judge=s prior findings of fact, the judge=s notice decision must be reversed. We are not persuaded.
The employee testified he got to work early on March 8, 1998, and injured his back while shoveling some snow away from the back door. He further testified he told his supervisors, Jerome Woodbury and Delray Hoefker, about this incident. Mr. Woodbury testified he did not recall the employee reporting to him an injury while shoveling snow. Clearly, there was a conflict between the testimony of the employee and that of Mr. Woodbury. The fact the compensation judge found, in her initial decision, that the employer first received notice on May 10, 1999, does not imply, as the appellants argue, the employee=s testimony is not credible. Rather, the compensation judge did not address the credibility issue until presented with the issue on remand. "Assessment of witness credibility is the unique function of the factfinder." Tews v. Geo. A. Hormel & Co., 430 N.W.2d 178, 180, 41 W.C.D. 410, 412 (Minn. 1988). It is not the role of this court to re-evaluate the credibility and probative value of witness testimony or to choose inferences from the evidence different from those of the compensation judge, unless such inferences are clearly and manifestly contrary to the evidence. Such is not the case here. Krotzer v. Browning-Ferris/Woodlake Sanitation Serv., 459 N.W.2d 509, 513, 43 W.C.D. 254, 260-61 (Minn. 1990). The finding of the compensation judge is, therefore, affirmed.
Fullerton/U.S.F. & G. further contend this court=s remand to the compensation judge was unnecessary, outside the issues properly before the court in the first appeal, and is moot. They argue the compensation judge found only that the employee sustained a Gillette injury on March 8, 1998, and made no finding whether the employee sustained a specific injury on March 8, 1998. Thus, they argue, it is irrelevant whether the employee gave notice of a low back flare-up resulting from a snow shoveling incident on March 8, 1998 since this incident was not found by the compensation judge to be a personal injury or a substantial contributing factor to the employee=s entitlement to benefits. The appellants argue that whether the snow shoveling incident in fact occurred or whether the employer had notice of it is a moot point and of no legal significance. Accordingly, the appellants contend the employee=s claims for benefits are barred due to his failure to give notice of the March 8, 1998 Gillette injury. We disagree.
Minn. Stat. ' 176.141 requires that an employee notify the employer of a work-related injury in a timely manner. AThe notice requirement is designed to enable the employer to furnish immediate medical attention in the hope of minimizing the seriousness of the injury as well as to protect the employer by permitting him to investigate the claim soon after the injury.@ Sobczyk v. City of Duluth, 245 Minn. 569, 73 N.W.2d 795, 19 W.C.D. 263 (1955). As a general rule, an employee need only give notice of the injury itself and not all of the body parts injured in one occurrence. Runkel v. University of Minn., memo. op. (W.C.C.A. Mar. 8, 2002).
The employee was shoveling snow on the employer=s premises on or about March 8, 1998 when he experienced low back pain. The employee gave timely notice of this incident to the employer. Thereafter, the employee received regular and frequent medical treatment and ultimately underwent a lumbar fusion in July 1998. Whether the snow shoveling incident was, by itself, a substantial and contributing cause of the employee=s subsequent disability is not, in this case, dispositive of the notice issue. See Mehle v. Oglebay Norton Taconite Co., 57 W.C.D. 336 (W.C.C.A. 1997) (an accurate understanding of the underlying circumstances leading to an injury is not necessarily determinative on the issue of whether timely notice was given). What is significant is that by March 8, 1998, the employer had actual knowledge of an alleged work-related incident with resultant medical treatment. For purposes of notice, it does not matter whether the employee=s disability and need for medical treatment was caused by a specific injury on March 8 or a Gillette injury culminating in disability on March 8, 1998. In either case, the employer had knowledge of a work-related incident yielding the opportunity to conduct an investigation, obtain the employee=s medical records, and monitor his medical care. Accordingly, the purposes of the notice statute have been satisfied in this case. We, therefore, affirm the compensation judge=s Findings on Remand.