ANTHONY C. RUNKEL, Employee, v. UNIVERSITY OF MINN., SELF-INSURED/SEDGWICK CLAIMS MANAGEMENT SERVS., Employer/Appellant, and ORTHOPAEDIC CONSULTANTS and HEALTHPARTNERS, INC., Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
MARCH 8, 2002
NOTICE OF INJURY. While the employee initially had more symptoms from his ankle and leg injuries than from his left knee and low back, and therefore did not specify a left knee or low back injury on the date he fell, he was required only to give notice of the injury itself and not all of the body parts injured in that event.
NOTICE OF INJURY. Where the employee initially notified the employer that he fell approximately 6 feet at the time of his injury, and later admitted he fell approximately 30 - 40 feet, notice of the injury on the date it occurred was proper and timely notice, as the focus of the notice provisions in Minn. Stat. '176.141 is upon notice of the actual injury, not the accuracy of the underlying facts provided by the employee with respect to the details of the injury.
EVIDENCE - CREDIBILITY. Where the employee=s fall was unwitnessed, and the employee=s testimony provided the sole account of the height of his fall, the compensation judge=s finding of the employee=s credibility will not be disturbed on appeal, as assessment of witness credibility is the unique function of the factfinder.
Determined by: Rykken, J., Wilson, J., and Pederson, J.
Compensation Judge: William R. Johnson
MIRIAM P. RYKKEN, Judge
The self-insured employer appeals from the compensation judge=s findings that the employee provided timely notice to the employer and insurer of injuries he sustained to his left knee and low back on June 18, 1999. We affirm.
On June 18, 1999, Anthony C. Runkel, the employee, was employed as a geologist for the University of Minnesota, employer. The employee was 39 years old at that time, and earned a weekly wage of $821.60. On that date, the employer was self-insured for workers= compensation liability in the state of Minnesota with Sedgwick James Claims Management Services serving as the employer=s third-party administrator. In his position as a senior scientist and adjunct professor, the employee=s job duties included research on bedrock and hydrogeology, teaching classes on the University of Minnesota campus and lecturing at colleges in Minnesota and the surrounding region.
On June 18, 1999, the employee fell off a ledge or rock outcropping in Southeastern Minnesota while conducting a field examination. After his fall, the employee reported to the emergency room of the Franciscan Skemp Healthcare Medical Center in LaCrosse, Wisconsin, for medical treatment, where he was diagnosed with a compound fracture of his left leg, a right ankle sprain, a broken index finger and a scalp laceration. The employee was hospitalized for two nights. On June 19, he underwent surgery to his left ankle in the nature of debridement, open reduction and internal fixation. On June 20, the employee returned to the Minneapolis-St. Paul area, and on Monday, June 21, he returned to work.
The employee provided his initial notice of the injury to his director, David Southwick, by telephoning from the emergency room; he reported that he fell six feet when an edge of a rock ledge gave way. (First Report of Injury, Ee. Ex. B.) The employee informed the emergency room physician that he fell five to six feet, although he later claimed he fell 35 to 40 feet off the rock outcropping he was examining. The employee testified that he minimized the height of his fall because he felt embarrassed by the fall, since part of his job is taking care of himself in the field and he had done field work for 20 years Aall over the country in much more rigorous, dangerous areas.@ (T. 24.)
Upon his return to the Minneapolis-St. Paul area, the employee received follow-up orthopedic treatment from Dr. John A. Wilson. The employee consulted Dr. Wilson on June 25, 1999; his chart notes state that the employee reported that he fell about 15 feet, landing hard on both feet. Dr. Wilson concluded that the employee=s right ankle injury was more serious than was originally determined, and placed his right ankle in a support splint, recommending that the employee minimize his activities as much as possible. Dr. Wilson also replaced the employee=s left ankle cast.
The First Report of Injury, completed by the employer on June 22, 1999, refers to an AAlleged compound fracture left leg just above ankle and [right] ankle sprain.@ (Ee. Ex. B.) On June 26, 1999, the employee completed a form report entitled AEmployee=s Workers= Compensation Report,@ explaining the circumstances of his injury by writing that he Afell awkwardly several feet into a pile of rocks.@ (Ee. Ex. E.) The employer accepted liability for the employee=s left ankle fracture as well as his injury to his right ankle, right index finger and scalp. The employer paid for medical expenses incurred to treat the admitted injuries.
By July 15, 1999, Dr. Wilson advised the employee to be non-weight bearing for an additional four weeks, and recommended physical therapy within two months, to assist with active motion. By mid-August 1999, the employee began experiencing left knee and low back symptoms. On August 12, 1999, the employee reported symptoms in his left knee to Dr. Wilson, who advised that although no surgery was necessary for the left knee at this point, he recommended an MRI scan of the knee. The employee testified that Dr. Wilson diagnosed ligament damage and suggested that since his ankle was Astill a mess,@ he would Adeal with@ the knee later that winter. (T. 32.)
On August 19, 1999, the employee reported right leg pain to Dr. Wilson. His chart note states that the employee reported that he had Adeveloped acute pain in his right leg with sciatica type pattern in the buttock extending from the posterior thigh into the medial three toes of his foot, which are numb at this time. He has substantial pain with coughing and sneezing. He states that he has never had anything like this before.@ (Ee. Ex. J.) An MRI scan of the employee=s lumbar spine, taken on September 9, 1999, was interpreted to show single-level degenerative disc disease at the L5-S1 level, with a large, extruded, free fragment disc herniation at L5-S1 on the left side and severe nerve root compression at the S1 level. (Ee. Ex. J.) Dr. Wilson ultimately diagnosed a herniated lumbar disc at the L5-S1 level, and on September 14, 1999, performed surgery in the nature of a microdiscectomy with hemilaminectomy. The employee missed work for approximately one week post-surgery.
Dr. Wilson concluded that the employee=s low back and left knee conditions were related to his June 1999 injury, and that they had been masked by the employee=s significant left ankle injury. In mid-August 1999, Dr. Wilson apparently sought but was denied preauthorization from the insurance administrator for performing an MRI scan of the employee=s lumbar spine. The employee telephoned the insurance representative to explain that his work-related injury was much more severe than originally considered, but the representative denied preauthorization for a recommended MRI scan of the lumbar spine on the basis that Aif his back was genuinely injured in the June accident, then he should have complained about low back symptoms much sooner.@ (T. 27.) The employee also testified that he first reported left knee symptoms to Dr. Wilson in early August and that when he was told by Dr. Wilson this injury was work-related, he so advised the insurance administrator. The insurance administrator apparently Aofficially denied@ the left knee injury at the point when Dr. Wilson recommended a CAT scan or MRI for the left knee. Based on the denial for the diagnostic procedures, the employee went forward with medical treatment to his left knee and low back, with those expenses paid by his health insurer, HealthPartners.
An MRI scan of the employee=s left knee taken on October 21, 1999, was interpreted as showing a Abone marrow contusion in the medial aspect of the medial femoral condyle. Cannot exclude an associated hairline fracture in this region.@ (Ee. Ex. J.) By October 1999, Dr. Wilson stated that he Asuspect[ed] an anterior cruciate injury@ of the employee=s left knee. The employee reported to Dr. Wilson on December 8, 1999, that he had problems with his left knee, Agoing down inclined planes, and up stairs, or over rough terrain.@ (Ee. Ex. J.) On February 23, 2000, the employee underwent arthroscopic surgery to his left knee, also performed by Dr. Wilson. (Er. Ex. 1.)
On October 7, 1999, the employee filed a claim petition, alleging an injury to his lumbar spine, left lower extremity, right ankle, right index finger and scalp. The employee claimed entitlement to temporary partial disability benefits from June 21, 1999, permanent partial disability benefits, and payment of medical expenses. In its answer, the self-insured employer admitted liability for all claimed injuries but for the injury to the lumbar spine. The employer also continued to deny liability for the employee=s left knee injury.
In November 2000, the employer and HealthPartners entered into a to-date settlement of the HealthPartners= intervention claim for reimbursement of medical expenses paid for treatment of the employee=s low back and left knee injuries. The employee=s claims were heard before a compensation judge on April 26, 2001. At the time of the hearing, the employee claimed entitlement to 2.2 weeks of temporary total disability benefits and to permanent partial disability benefits, relative to his left knee and low back injuries. The employer denied liability for the claimed left knee and low back injuries. In Findings and Order served and filed on June 18, 2001, the compensation judge found that the employee sustained a left knee and low back injury as a result of his fall at work on June 18, 1999, and that the employee provided timely notice to the employer of those injuries. The compensation judge awarded temporary total disability benefits for 2.2 weeks, and awarded 14.12 percent permanent partial disability of the body as a whole, relative to the employee=s low back, left knee and left ankle. The employer appeals.
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.
"[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).
The self-insured employer appeals from the compensation judge=s finding that the employee provided the employer with timely notice of his low back and left knee injuries. The employer argues that the employee=s false description of the distance he fell when injured constitutes ineffective notice of those injuries.
Essential to proof of a claim under the Workers= Compensation Act is a showing that the employer had timely notice or knowledge of the employee=s injury within the statutory period. Issacson v. Minnetonka, Inc., 411 N.W.2d 865, 40 W.C.D. 270 (Minn. 1987). Minn. Stat. ' 176.141 outlines the time requirements for providing notice to an employer of a work-related injury. The statute sets forth requirements for an employee to provide notice within 30 days of an injury, or, in certain mitigating circumstances, within 180 days of an injury. It has long been held that the purpose of the statutory notice requirement is Ato 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.@ Kling v. St. Barnabas Hosp., 291 Minn. 257, 261, 190 N.W.2d 674, 677, 26 W.C.D. 53, 56 (1971), citing Pojanowski v. Hart, 288 Minn. 77, 178 N.W.2d 913, 25 W.C.D. 206 (1970).
The employee contacted the employer to report his injury on the date it occurred, June 18, 1999. He telephoned a representative of the employer, and advised that he had fallen, and that he was receiving emergency medical treatment. On June 26, 1999, the employee completed a Aemployee=s workers= compensation report,@ explaining the circumstances of his injury by writing that he Afell awkwardly several feet into a pile of rocks.@ The employee=s initial medical treatment was to his fractured left ankle, sprained right ankle, right index finger and scalp. The employee initially received treatment for his left knee and low back conditions by sometime in late August or early September 1999. It was at that point the employee advised the self-insured employer=s insurance administrator of his low back condition, and it was soon thereafter that the employee advised the administrator of his left knee condition.
The compensation judge found that under the Atrivial injury rule,@ the employee provided timely notice to the employer of his injuries. He found that the employee did not realize he had sustained a work-related left knee and low back injury until Dr. Wilson so advised him in August 1999. The compensation judge found that the employee credibly testified that he was focused on his ankle that was, in the employee=s words, Aa mess,@ and concluded that the employee reported his later left knee and low back problems on a timely basis once he realized they were work-related.
The trivial injury rule is inapplicable to this case because the employee=s notice to the employer of an injury occurring on June 18, 1999, was timely notice as it relates to injury to all body parts injured on that date. It is undisputed that the employer was made aware on June 18, 1999, that the employee sustained an injury that day while performing work activities. While the employee initially had more symptoms from his ankle and leg injuries than from his left knee and low back, and therefore did not specify a left knee or low back injury on the date he fell, it is well established that an employee need only give notice of the injury itself and not all of the body parts injured in that event. Carpenter v. Spring Plumbing, Inc., slip op. (W.C.C.A. May 5, 1988). Therefore, the employer received timely notice of the incident occurring on June 18, 1999, which encompassed injury to the left knee and low back.
However, the employer argues that for notice of injury to be effective, it must be accurate in its material respects, and since the employee provided materially false and deliberately misleading information with regard to the nature of his injury, he effectively gave no notice at all of his left knee and low back injuries. The employer argues that the compensation judge did not address the legal significance of what the employer characterizes as grossly inaccurate notice. The employer argues that the employee=s actions deprived the employer of knowledge about significant facts of the accident, which may have prompted an investigation of the fall in an effort to ensure that such an event did not occur to other employees in similar situations. The employer also argues that the compensation judge overlooked the fact that the employee made no effort to correct his material representation he had created until the employee=s discovery deposition was taken on December 30, 1999, even though the employee was aware by August 1999 that his claimed knee and back injuries were caused by his work injury.
Minn. Stat. '176.141, by its express language, requires that an employee provide notice of the occurrence of an injury (emphasis added). The focus of the notice provisions in Minn. Stat. ' 76.141 is upon notice of the actual injury, not the accuracy of the underlying facts provided by the employee with respect to the details of the injury. The employee argues that there is no basis for the employer=s argument that inaccurate notice of the cause of the injury, even when the injury occurred within the scope and course of employment, constitutes ineffective notice sufficient to bar a claim. He argues that, as such, the underlying legal basis for the employer=s argument on appeal must fail, since the record clearly establishes proper and timely notice of the employee=s injuries. We agree.
This court addressed a similar situation in Mehle v. Oglebay Norton Taconite Co., 57 W.C.D. 336 (W.C.C.A. 1997), wherein an employee falsely described the circumstances of his 1999 left knee injury to his supervisor at the time of the injury, and more than five years later, the employer and insurer were informed of the actual circumstances surrounding the incident (employee initially reported that his knee had been injured when it was struck by a piece of machinery, when in fact the injury had been caused by an incident involving an assault by a co-worker). In Mehle, as in this case, the medical treatment purpose of the statute was satisfied by the employee=s report of the injury, even though the circumstances were inaccurately described, because the employee received medical treatment commencing on the injury date. In addition, in both Mehle and in this case, the notice given by the employee, misleading though it was, nevertheless gave the employer the opportunity to investigate the site of the employee=s injury. In Mehle, this court stated:
We acknowledge that our decision here may put employers at something of a disadvantage in ascertaining the exact circumstances of an alleged work-related accident. However, a false report may very well have some negative consequences for an employee as well. An employee who dramatically changes his report of how an injury occurred runs the risk that a compensation judge will not believe that employee sustained a compensable injury at work at all. . . . However, the notice statute on its face requires only that the employer have knowledge or the employee give notice Aof the occurrence of the injury,@ and we decline to adopt the employer=s suggestion that misrepresentations by an employee as to the exact circumstances or mechanism of injury raise an automatic bar to compensation.
Mehle v. Oglebay Norton Taconite Co., 57 W.C.D. 336 (W.C.C.A. 1997) (footnote omitted); see also Seppo v. Kolar Buick, Inc., slip op. (W.C.C.A. April 11, 2001).
Under the facts presented here, we conclude that the evidence establishes that the employee provided the employer with timely notice of his injury, and that neither his delay in accurately reporting the distance he fell when injured, nor his report of his low back and left knee conditions after they developed a few months post-injury, bars his claim. In this case, the compensation judge=s conclusion that the employee provided the employer with timely notice is consistent with prior judicial interpretation of the intent and purpose of the statute. See Kling v. St. Barnabas Hosp., 291 Minn. 157, 190 N.W.2d 674, 26 W.C.D. 53. We therefore affirm that finding and, accordingly, affirm the award of benefits.
The employer also appeals from the compensation judge=s finding that the employee fell 30 to 40 feet on the date of injury. The employee=s fall was unwitnessed, and so the compensation judge relied on the employee=s testimony of the height of his fall. (T. 37-40.) "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), and a finding based on credibility of a witness will not be disturbed on appeal unless there is clear evidence to the contrary. See Even v. Kraft, Inc., 445 N.W.2d 831, 835, 42 W.C.D. 220, 225-26 (Minn. 1989). It is not the role of this court to evaluate the credibility and probative value of witness testimony and to choose different inferences from the evidence than the compensation judge. Krotzer v. Browning-Ferris/Woodlake Sanitation Serv., 459 N.W.2d 509, 513, 43 W.C.D. 254, 260-61 (Minn. 1990), citing Redgate v. Sroga's Standard Service, 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988). Based on the compensation judge=s opportunity to observe the employee and to assess his credibility, we will not disturb his finding that the employee fell 30 to 40 feet and therefore affirm that finding.
 It is not clear from the record when the employee informed the insurance administrator of his left knee injury, nor when the administrator denied preauthorization for medical treatment related to the employee=s left knee, but apparently both occurred in September or October 1999.
 Prior to hearing, the employer paid benefits based on four percent permanent partial disability of the body as a whole, relative to the left ankle injury.
 Minn. Stat. ' 176.141 reads, in its entirety:
Unless the employer has actual knowledge of the occurrence of the injury or unless the injured worker, or a dependent or someone in behalf of either, gives written notice thereof to the employer within 14 days after the occurrence of the injury, then no compensation shall be due until the notice is given or knowledge obtained. If the notice is given or the knowledge obtained within 30 days from the occurrence of the injury, no want, failure, or inaccuracy of a notice shall be a bar to obtaining compensation unless the employer shows prejudice by such want, defect, or inaccuracy, and then only to the extent of the prejudice. If the notice is given or the knowledge obtained within 180 days, and if the employee or other beneficiary shows that failure to give prior notice was due to the employee=s or beneficiary=s mistake, inadvertence, ignorance of fact or law, or inability, or to the fraud, misrepresentation, or deceit of the employer or agent, 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, except that an employee who is unable, because of mental or physical incapacity, to give notice to the employer within 180 days from the injury shall give the prescribed notice within 180 days from the time the incapacity ceases.
 Minn. Stat. ' 176.141 provides in part that, with certain exceptions, A[u]nless knowledge is obtained or written notice given within 180 days after the occurrence of the injury no compensation shall be allowed.@ Among interpreted exceptions to this rule is the Atrivial injury rule,@ which provides that the statutory notice period may be tolled for a trivial injury until Ait becomes reasonably apparent to the employee that the injury has resulted in, or is likely to cause, a compensable disability.@ Issacson, 411 N.W.2d at 867, 40 W.C.D. at 274, (citations omitted). The court in Issacson quoted Professor Larson=s enunciation of the principle, to the effect that the statutory notice period Adoes not begin to run until the claimant, as a reasonable person, should recognize the nature, seriousness and probable compensable character of his injury or disease.@ Id. at 867, 40 W.C.D. at 274 (quoting 3 A. Larson, The Law of Workmen=s Compensation ' 78.41(a) (1983)).
 Also in evidence is a photograph of the site where the employee fell, offered to illustrate the distance the employee fell. (Ee. Ex. C.)
 In its Notice of Appeal, the employer also appealed from the compensation judge=s award of permanency benefits and temporary total disability benefits relative to the employee=s left knee and low back conditions, but made no argument in its brief regarding those issues, beyond the general arguments concerning compensability. Issues raised in the notice of appeal but not briefed are deemed waived. Minn. R. 9800.0900, subp. 1. Therefore, those issues are waived and will not be addressed.