DOUG VAN NOSTRAND, Employee/Appellant, v. McLAUGHLIN & SCHULTZ, INC., and CNA COMMERCIAL INS., Employer-Insurer, and BLUE CROSS/BLUE SHIELD OF MINN., Intervenor.
WORKERS= COMPENSATION COURT OF APPEALS
SEPTEMBER 19, 2002
NOTICE OF INJURY - GILLETTE INJURY. On this record, the compensation judge=s finding that the employee failed to prove timely notice of a right hand carpal tunnel syndrome injury, within 180 days of May 28, 1998, is not clearly erroneous or manifestly contrary to the weight of the evidence.
Determined by Johnson, C.J., Wilson, J., and Stofferahn, J.
Compensation Judge: Jennifer Patterson.
THOMAS L. JOHNSON, Judge
The employee appeals the compensation judge=s finding that he failed to give timely notice of a personal injury on May 10, 1998. We affirm.
Doug Van Nostrand, the employee, began working for McLaughlin & Schultz, Inc., a paving contractor, in April 1997. Initially, the employee worked as a laborer shoveling and raking asphalt. Later, the employee drove a combine attached to the front of a paver that distributed asphalt on the roadway. To run the combine, the employee walked beside the machine and used his hands to operate a clutch, a throttle and three other levers that raised, lowered and engaged the machine. Pushing up the clutch from his ear level to above his head took all the employee=s strength. The employee engaged and disengaged the clutch 150 to 200 times per day. Typically, the employee operated the clutch with his right hand. The employee also pulled on the throttle 200 to 300 times a day. The employee stated the throttle was easy to move unless it stuck. The paver was raised and lowered by means of an hydraulic lever, which was above waist level and which the employee pushed six or seven inches between 10 and 50 times a day. The employee also had to shovel or rake asphalt two or three times a day when the machine stuck. During the road paving season, the employee worked six days a week, 16 hours a day, weather permitting.
In 1997, the employee developed right wrist symptoms consisting of a sharp pain and twinge in his right palm and wrist. The employee noted these symptoms while shoveling asphalt and the pain made it difficult for him to hold the shovel. The employee reported these symptoms to his foreman who said it was just a pinched nerve. He told the employee to keep working and the problem would work itself out. The employee was on seasonal layoff between the fall of 1997 and the spring of 1998. During this time, the employee noticed his hands went to sleep and ached intermittently.
The employee was recalled by the employer in April 1998 and spent his first few weeks of employment fixing machines. By May 1998, the employee was again operating a combine. The employee noted that raking and shoveling asphalt increased his wrist symptoms. The employee quit his job with the employer on May 16, 1998 to go work for his brother-in-law. During the two or three months he worked for his brother-in-law, the employee stated his hand symptoms did not worsen.
On May 19, 1998, the employee sought treatment with Dr. D. C. Swanson at Affiliated Medical Centers. The employee gave a history of right hand problems off and on for a couple of years, but stated the pain had gotten worse and more noticeable in recent weeks. On examination, Dr. Swanson noted no atrophy but Tinel=s sign was positive. The doctor diagnosed probable carpal tunnel syndrome and ordered an EMG of the right arm which was obtained on May 21, 1998. The EMG showed a distal slowing of conduction in the sensory fibers of the right median nerve. The employee called the doctor=s office on May 28, 1998. A note of the conversation states: APt. notified of carpal tunnel report [and] nerve conduction study.@ A follow-up appointment was scheduled for July 20, 1998 for which the employee did not appear.
The employee testified that after the EMG, Dr. Swanson told him he had carpal tunnel syndrome and they then discussed the relationship between the diagnosis and the employee=s work activities. The employee testified Dr. Swanson told him Athat all the repetitions in the shoveling and stuff would cause that if it was constant, if you kept it up for as many years - - for a lot of years.@ On cross examination, the employee testified Dr. Swanson told him, on May 19, 1998 that his symptoms were related to his work activities. Prior thereto, the employee stated he had no idea what was causing his symptoms.
The employee returned to work for the employer in mid July 1998, and worked for the remainder of the 1998 construction season at his regular job without further medical care for his right wrist. He testified, however, that his work duties increased his symptoms in both hands. At some point, the employee testified he told his crew foreman, Gary Van Watermuelln that his doctor had diagnosed carpal tunnel syndrome. The employee continued to work for the employer during the 1999 construction season and following another seasonal layoff, returned to work for the employer in April 2000. The employee sought no further treatment for his carpal tunnel syndrome until April 10, 2000.
In July 2000, the employee filed a claim petition seeking benefits secondary to bilateral carpel tunnel syndrome. In an unappealed finding, the compensation judge found the employee sustained a Gillette injury in the nature of carpal tunnel syndrome to the right wrist on May 10, 1998. The compensation judge found, however, the employee did not provide the employer with timely notice of this injury. The employee appeals this finding.
Minn. Stat. ' 176.141, provides that no compensation shall be due unless the employer has actual knowledge of the occurrence of the injury or unless the employee gives notice of the injury to the employer within 180 days after the occurrence of the injury. The purpose of the notice requirement is to permit the employer to make such investigation as is necessary to determine its liability for a compensation claim and to allow the employer to provide necessary medical care. Rinne v. W.C. Griffis Co., 234 Minn. 146, 47 N.W.2d 872, 16 W.C.D. 348 (1951). Either written notice to, or actual knowledge of, the employer satisfies the purposes of the statute. Actual knowledge is such information as would put a reasonable employer on inquiry that the employee=s disability is work related. Pojanowski v. Hart, 288 Minn. 77, 178 N.W.2d 913, 25 W.C.D. 206 (1970). For actual knowledge to exist, an employer must have some information connecting the work activity with an injury. Greene v. W & W Generator Rebuilders, 302 Minn. 542, 224 N.W.2d 157, 27 W.C.D. 654 (1974). Generally, the question of whether the facts known to the employer within the statutory notice period were sufficient to constitute actual knowledge is one of fact for the compensation judge. Mulholland v. Carl Erickson Trucking, slip op. (W.C.C.A. June 4, 1998).
The employee contends the compensation judge=s finding that he failed to give legally sufficient notice of his May 10, 1998, injury is clearly erroneous and unsupported by substantial evidence. The employee argues he told his foreman of Dr. Swanson=s diagnosis of carpal tunnel syndrome and its relation to his work activities. This information, the employee argues, constitutes actual knowledge to the employer such that formal written notice was not required. Accordingly, the employee contends he gave statutory notice of his injury to the employer and the judge=s decision to the contrary should be reversed. We disagree.
An employee=s obligation to provide notice to the employer of a personal injury does not begin to run until the employee, as a reasonable person, should recognize the nature, seriousness and probable compensable effects of a personal injury. Issaacson v. Minnetonka, Inc., 411 N.W.2d 865, 40 W.C.D. 270 (Minn. 1987). In 1997, the employee complained to his employer about right hand symptoms. However, the employee testified he had no knowledge these symptoms were caused by his employment until he saw Dr. Swanson in May 1998. The employee stated Dr. Swanson then told him he had carpal tunnel syndrome caused by his employment activities with the employer. It is unclear from the employee=s testimony whether Dr. Swanson provided this opinion on May 19, 1998, or when the employee called the doctor=s office for the results of the EMG test on May 28, 1998. In any event, the employee=s obligation to give notice commenced, at the latest, on May 28, 1998. On appeal, the issue is whether the employer had actual knowledge of the employee=s carpal tunnel injury to his right hand within 180 days of May 28, 1998.
The employee=s trial testimony on the issue of notice was equivocal. On direct examination, the employee was asked by his attorney whether he had Aany discussions with anyone at work, your supervisor, foreman, regarding your problems?@ The employee testified he told his foreman, Mr. Van Watermuelln: Aat the time I told the foreman I believe there was, well, like some of the truck drivers that always stand around, and they were all laughing. They said it was nothing. They=ve had it for years and that you can live with it.@ When asked the foreman=s response, the employee testified, A[w]ell, that would have been when he told me that it was just a pinched nerve. Just keep working. It would work itself out.@(T. 30-31.) On cross examination, the employee was asked whether he told Mr. Van Watermuelln what the doctor had told him after he returned to work for the employer in July 1998. The employee responded, A[y]es, sir, but I had spoke with him in >97, too, and told him what had happened. He is the one that told me that it was just a pinched nerve, keep working.@ (T. 54.) The employee further testified he reported to Mr. Van Watermuelln the results of the EMG test. On cross-examination, the employee was further questioned about a deposition obtained on August 5, 2000. The employee was asked in the deposition whether he told anyone about the symptoms he was having in 1998 and the employee answered no. (T. 57-58.)
The employee sustained a work-related carpal tunnel injury to his right hand in May 1998. Admittedly, the employee reported symptoms of that injury to his employer within 180 days thereafter. That information, alone, is insufficient to constitute actual knowledge to the employer of the occurrence of an injury. AMere knowledge of disability following a traumatic injury is not sufficient, for the facts and circumstances of either the disability or the injury must be such as would put a reasonable man on inquiry that the injury is work-related.@ Davidson v. Bermo, Inc., 272 Minn. 97, 137 N.W.2d 567, 23 W.C.D. 623 (1965). The employee=s testimony on that essential fact was equivocal and contradictory. The compensation judge found the employee=s notice to the employer did not constitute actual knowledge within the meaning of the statute. Although the evidence was conflicting, the judge could reasonably conclude the employer did not receive timely information connecting the employee=s carpal tunnel syndrome and his work activities. AWhere the evidence is conflicting or more than one inference may reasonably be drawn from the evidence, the findings of the compensation judge are to be upheld.@ Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235 (Minn. 1984). On this record, we cannot conclude the findings of the compensation judge are clearly erroneous or manifestly contrary to the weight of the evidence. Northern States Power Co. v. Lyon Food Prods., Inc., 304-196, 229 N.W.2d 521 (1975). The finding of the compensation judge is, therefore, affirmed.