MARK H. HAGY, Employee/Appellant, v. MORTON BLDGS., INC., and KEMPER INS. CO./BROADSPIRE, Employer-Insurer,
WORKERS= COMPENSATION COURT OF APPEALS
JUNE 8, 2007
NOTICE OF INJURY - GILLETTE INJURY. Where the employer was informed of a work-related condition resulting in physical work restrictions, the employer had adequate notice of an injury, as required by Minn. Stat. ' 176.141, and the compensation judge=s finding that the employee failed to provide timely notice is not supported by substantial evidence in the record and is reversed.
Reversed and remanded.
Determined by: Rykken, J., Johnson, C.J., and Stofferahn, J.
Compensation Judge: Gary P. Mesna
Attorneys: Jeffrey R. Hannig, Hannig & Assocs., Fargo, ND, for the Appellant. Richard C. Nelson and Christine L. Tuft, Arthur, Chapman, Kettering, Smetak & Pikala, Minneapolis, MN, for the Respondents.
MIRIAM P. RYKKEN, Judge
The employee appeals the compensation judge=s finding that the employer did not receive timely knowledge or notice of the employee=s claims of Gillette injuries to his right knee and right wrist. We reverse in part and remand in part.
Mark Hagy, the employee, worked as a carpenter and carpenter crew foreman for Morton Buildings, Inc., the employer, between approximately 1980 and 2005, constructing farm and commercial buildings. The dispute on appeal relates to benefits the employee seeks as a result of Gillette injuries he claimed to have sustained to his right knee and right wrist on or about November 11, 2002, as a result of his work for the employer.
The employee earlier injured his right knee and wrist while working for the employer. On January 17, 1981, the employee sustained an admitted work injury to his right knee when he slipped in a hole while setting posts. The employer and its insurer at that time, CIGNA, admitted primary liability for the injury. The record contains no medical records generated following that injury, and does not indicate what benefits were paid by the employer and insurer immediately following this injury. However, the employee testified that he continued to work for the employer after that injury. In January 1982, the employee reported to Dr. J.C. Bernhoft that he had experienced intermittent episodes of a locking sensation and other symptoms in his right knee, including movement in and out of the medial side of his right knee and a lump on the medial side of that knee. He had also noted difficulty climbing up and down stairs. In January 1982, Dr. Bernhoft performed arthroscopic surgery to repair the right medial meniscus. The employee eventually returned to work without restrictions. According to the employee=s testimony, his right knee has felt weaker and Aa little more unstable@ after his 1981 injury, and certain activities, such as kneeling, climbing and heavy lifting cause his knee to ache.
On August 12, 1987, the employee sustained an admitted right wrist injury when he fell from a ladder. Following that injury, the employee was treated conservatively, wore an Ace bandage on his wrist for a few weeks after the injury, but lost no time from work. At the time of his 1987 work injury, the employee and his crew were working at a North Dakota work site; evidently due to the location of that work site, benefits related to that injury were administered through the North Dakota Workers= Compensation Bureau. The employee testified that he experienced ongoing right knee and right wrist symptoms following his 1987 injury, and that his wrist Abothered [him] the rest of the time [he] worked for Morton.@
In 1988, the employee underwent revision arthroscopic surgery on his right knee to remove degenerative calcium build-up, and again returned to work without restrictions. In 1991, the employee sustained another injury to his right knee after stepping on uneven ground; his treating physician prescribed a knee brace, and later assigned a five percent permanent partial disability rating for the employee=s right knee condition. In 2000, the employee injured his knee again and received additional medical treatment. A first report of injury completed on May 22, 2000, states that a Atear [of the] medial meniscus on right knee, posterior horn was the original problem and to this date he still needs medical treatment for it. This is an ongoing problem.@
According to the employee=s testimony, his right knee and right wrist conditions have deteriorated. During the last ten years of his employment with the employer, he frequently wore an Ace bandage around his right wrist while working, and felt that hammering and using power tools aggravated his right wrist symptoms. The employee=s right knee pain also worsened during his last ten years of employment, and in the fall of 2002, the employee noticed that his right leg was starting to Aplay out,@ it bothered him at night, and he felt himself Adragging@ his leg a little more than usual. His right hip also bothered him, especially after walking and climbing.
On November 11, 2002, he sought treatment with his family physician in Mahnomen, Minnesota, Dr. Edward LaDue, reporting worsening right knee symptoms, increased right wrist pain, and left hand symptoms including a locking of his fingers. He advised the doctor of his 1981 right knee and 1987 right wrist injuries, and reported that his knee symptoms had worsened during the past three weeks and that his wrist symptoms increased when he used a hammer. Dr. LaDue referred the employee to an orthopedic surgeon in Fargo, North Dakota, Dr. Mark Wiest, who examined the employee the following day. Dr. Wiest diagnosed significant medial compartment right knee degenerative arthritis status post meniscectomy, marked radio lunate osteoarthrosis with early instability pattern and cyst formation in the right wrist, and probable left carpal tunnel syndrome with middle and ring trigger fingers. He restricted the employee from climbing on buildings and to light-duty work with limited amounts of pounding and repetitive wrist and hand work. Dr. Wiest also advised that the employee could benefit from an Aunloader knee brace.@ Dr. Wiest completed a form setting forth the employee=s restrictions. In the portion of the form entitled AInjured Worker=s Description of Injury,@ Dr. Wiest referred to the employee=s 1981 work injury to his right knee, his 1987 work injury to his right wrist, and A[r]ecent trigger fingers.@ (Employer Exh. 9.) Dr. Wiest also wrote a letter to Dr. LaDue, dated November 12, 2002, in which he stated his opinion that the employee=s work as the crew foreman, and his climbing, pounding, and construction work, Amarkedly aggravates all of his symptoms.@ He also recommended that the employee consider retraining for another type of work with the employer=s business, such as in sales or other supervisory work.
On November 12, 2002, the employee provided Dr. Wiest=s work restriction form to his manager at the employer=s Moorhead, Minnesota, office. The employee testified that he could not recall exactly what he told his manager, but testified that the manager Aknew that I was going to the doctor,@ that the manager knew he had knee problems and that he Atold [the manager] what the doctor found and I gave him the restriction paper.@ (T. 72.) He also testified that the manager advised him that until his restrictions were lifted, he would not be able to work for the employer. A secretary for the employer prepared a first report of injury (FROI) form, listing a date of claimed injury of November 11, 2002, and referring solely to a left hand injury. The FROI includes a description of the injury as being Aover uses of hand over years. Left hand.@ and AL. Hand goes numb mid 2 fingers sometimes lock in morning. Every day normal uses.@ (Employer Exh. 7.) The employer submitted the FROI and a copy of Dr. Wiest=s work restriction form to its insurer on that date, Kemper Insurance.
In response to the FROI, Kemper Insurance, who had insured the employer since January 1, 2002, denied primary liability for a left hand injury, and filed a Notice of Primary Liability Determination (NOPLD), stating that.
There is no medical documentation to support the [claim that the] employee=s current disability and need for medical treatment is related to an injury on 11/11/02. Rather, the attached medical report refers to 1981 and 1987 injuries handled by the North Dakota Work Comp. Bureau.
(Employee Exh. F.) Evidently either the employer or employee also submitted claim information to CIGNA Insurance Company (now known as ACE USA), the insurer at the time of the employee=s right knee injury in 1981, and to the North Dakota Workers= Compensation Bureau, which administered the employee=s claim for his 1987 right wrist injury. CIGNA/ACE accepted liability for the employee=s ongoing claims related to his right knee, and paid him temporary total disability benefits and medical expenses related to treatment for his right knee. CIGNA/ACE also provided the employee with statutory rehabilitation assistance, commencing in January 2003. The North Dakota Workers= Compensation Bureau denied the employee=s claim related to his right wrist condition, evidently due to the passage of time since his original right wrist injury in 1987.
The record contains medical records generated between 2002 and 2005. The employee periodically consulted Dr. Wiest for his right wrist condition. In an AAttending Physician=s Statement@ form dated November 27, 2002, Dr. Wiest confirmed his recommendations for work restrictions and, in response to the question of AWhen did symptoms first appear or accident happen?@, listed the 1981 and 1987 injury dates. The employee again consulted Dr. Wiest in January 2003, and was fitted for a knee brace. At that time, Dr. Wiest recommended permanent work restrictions, including light-duty work with no climbing up and down off buildings and no heavy manual work.
The employee consulted Dr. J. Donald Opgrande in March 2003 for his right wrist, reporting that he had noted wrist pain since his 1987 injury, and that his symptoms had increased during the past 7-8 years, to the point that he consulted Dr. LaDue in November 2002. Dr. Opgrande related the employee=s condition to his right wrist injury in 1987, based on the history of that injury and Athe fact that he states that his wrist has never been normal and has worsened over the last seven to eight years.@
On November 12, 2003, the employee consulted Dr. Wiest about his continued right knee pain, reporting that he wore a knee brace almost full time when walking. Dr. Wiest advised the employee of his significant osteoarthritis of his right knee, and recommended a functional capacity evaluation and retraining, and, ultimately, that the employee needed to consider a knee replacement.
The record also includes a report issued by Dr. Michael Smith, following his independent medical examination conducted on January 15, 2004, at the request of the employer and CIGNA/ACE, who was the insurer at the time of the employee=s 1981 right knee injury. In his report of January 15, 2004, Dr. Smith concluded that the employee=s ongoing right knee, right wrist and low back conditions were Athe direct consequences of inciting, fairly significant events@ and that the employee did not sustain any Gillette injuries.
On October 6, 2004, the employee again consulted Dr. Wiest for his right knee; Dr. Wiest again recommended retraining for light-duty work, and assigned continued work restrictions. In his chart note, Dr. Wiest again referred to the employee=s work injury in 1981.
The employee was assigned a qualified rehabilitation consultant (QRC) and conducted an extensive job search, but received no job offers during the time he worked with a QRC and placement specialist. In September 2005, the employee, employer and CIGNA/ACE entered into a settlement of the employee=s claims arising out of his 1981 right knee injury. In exchange for payment of $151,500.00, the employee agreed to close out his claim for benefits related to his 1981 right knee injury on a full, final and complete basis.
On September 25, 2005, the employee began working part-time as a contractor for a house building project. On November 8, 2005, the employee filed a claim petition seeking temporary partial benefits from and after September 25, 2005, as a result of Gillette injuries he claimed had culminated on or about November 11, 2002. In support of his claims, he relied, in part, on the opinion of Dr. Opgrande and causation opinion of Dr. Wiest, as set forth in his September 8, 2005, report, that the employee=s knee problems were Adefinitely related to the heavy duty labor of which he has done in the preceding 20 years,@ and that his osteoarthrosis of the right knee Awas definitely aggravated and accelerated by his construction labor.@
The employer and Kemper, n/k/a Broadspire, denied the claim, asserting that the employee=s claimed disability and need for medical treatment were not causally related to alleged Gillette injuries culminating on or about November 11, 2002, but instead were related to activities or injuries sustained while other insurers were on the risk.
An evidentiary hearing was held on September 29, 2006, to address the employee=s claim petition, and the compensation judge issued his findings and order on November 1, 2006. While the compensation judge found that the employee had sustained Gillette injuries to his right knee and right wrist, culminating on November 11, 2002, that the employee had cooperated with rehabilitation and performed a diligent job search, and that the employee=s work injuries were a substantial contributing cause of the employee=s partial disability, he also found that the employee had realized by November 2002 that his ongoing work activities were aggravating his right knee and right wrist conditions but had not given timely notice of the claimed November 11, 2002, Gillette injuries and denied the employee=s claim for temporary partial benefits.
In his memorandum the compensation judge addressed the medical evidence in support of his conclusion that the employee=s knee and wrist condition were aggravated by the employee=s work activities between 1981 and 2002. He rejected the employer and insurer=s argument that the employee=s claim should be denied under the doctrine of laches, due to the employee=s delay in filing a Gillette injury claim until after he had finalized a settlement of his claim related to his 1981 work injury. The judge concluded that the claim in this case was related to a different injury than the one resolved by the 2005 stipulation for settlement. The employee appeals.
To prove a claim under the Workers= Compensation Act, an employee must show 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 14 days or 30 days of an injury, or, in certain mitigating circumstances, within 180 days of an 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); see also 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).
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).
In this case, the employee argues that the employer had Aknowledge of such information as would put a reasonable person on inquiry.@ Pojanowski, 288 Minn. at 77, 178 N.W. 2d at 916, 25 W.C.D. at 209. The employee asserts that the information he provided to the employer on November 12, 2002, provided actual knowledge of the claimed injuries on November 11, 2002, and that the compensation judge=s findings to the contrary, that the employer did not receive timely knowledge or notice of that claim, are clearly erroneous and unsupported by substantial evidence in the record.
The employee testified that his manager knew that he was planning to consult a doctor and that following his appointment with Dr. Wiest on November 12, 2002, he informed his manager that he had been assigned work restrictions and provided him with Dr. Wiest=s written restriction form. The employee also testified that he was aware of the employer=s policy that he could not work as a carpenter if he was assigned work restrictions. The work restriction form prepared by Dr. Wiest on November 12, 2002, listed a prescription for Bextra, referred to the employee=s left hand symptoms, a 1981 right knee injury and a 1987 right wrist injury, and assigned the following light duty work restrictions: ALimit climbing, lifting, repetitive wrist motions; Could benefit from unloader knee brace.@ The employer=s secretary prepared a first report of injury, referring solely to the employee=s left hand, but submitted the FROI and, it appears, Dr. Wiest=s work restriction form to Kemper, all of which, the employee argues, demonstrate the employer=s Aknowledge of such information as would put a reasonable person on inquiry.@ Pojanowski, 288 Minn. at 77, 178 N.W. 2d at 916, 25 W.C.D. at 209. The employee also argues that Kemper Insurance obviously made a connection between the employee=s claim for Adisability and need for medical treatment@ when it issued a formal denial of the claim for an injury date of November 11, 2002, and referred to the employee=s 1981 right knee injury and 1987 right wrist injury.
The employee cites to additional factors which demonstrate the employer=s and Kemper=s actual knowledge of a possible Gillette claim culminating on November 11, 2002. The Notice of Insurer=s Primary Liability Determination, completed by Kemper, referred to the employee=s right wrist injury claim administered by the North Dakota Workers= Compensation Bureau. The employee asserts that the only possible source of information about the North Dakota claim was the employer, and that the reason this particular information was submitted by the employer to Kemper was due to the employer=s Aactual knowledge@ of a possible Gillette claim culminating on November 11, 2002.
In his memorandum, the compensation judge concluded that there was Anothing in either the first report or the denial that suggests that the employer or insurer was notified of the claim of a new injury culminating in 2002.@ The employee argues that the evidence shows that employer and Kemper were provided with Ainquiry notice,@ and knew that the employee had prior work-related injuries to his right knee and wrist, that he had restrictions related to those injuries, and that Kemper proceeded to deny responsibility for those conditions on a form listing a date of injury of November 11, 2002, referring to a possible Gillette injury of that date.
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., 62 W.C.D. 302 (W.C.C.A. 2002). The employee gave timely notice of his consultation with a physician to address his symptoms, and notice of his newly-assigned work restrictions. Whether the employee=s possible Gillette injury culminating on November 11, 2002, was, by itself, a substantial and contributing cause of the employee=s subsequent disability, or whether his previous injuries were responsible, 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); see also Nelson v. Johnson Builders, slip op. (W.C.C.A. Aug. 27, 2002). What is significant is that by November 11, 2002, the employer had actual knowledge of an alleged work-related incident with resultant medical treatment and work restrictions, yielding the opportunity to conduct an investigation, obtain the employee=s medical records, and monitor his medical care. The employer clearly had notice of a left hand injury, and in conjunction with that had such information concerning a right knee and right wrist injury as would put the employer on inquiry that the employee=s disability was work related. We conclude that the employee timely provided adequate notice of a possible Gillette injury or injuries culminating on or about November 11, 2002. Accordingly, the purposes of the notice statute have been satisfied in this case. We, therefore, reverse the compensation judge=s finding that notice was not timely provided.
No appeal was taken from the compensation judge=s findings that the employee sustained Gillette injuries to his right wrist and right knee, culminating on November 11, 2002, that the employee cooperated with rehabilitation and performed a diligent job search, that the employee found a part-time job that was within his restrictions, that the employee is partially disabled and that the reduction in his earnings is directly related to his November 11, 2002, work injuries, and that the employer and insurer have not rebutted the presumption that the employee=s actual earnings reflect his true earning capacity. In view of our reversal, therefore, we remand this matter to the compensation judge for determination of benefits payable to the employee.
 Gillette v. Harold, Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960).
 The employee never returned to work for employer.
 There is a slight discrepancy between the date of the first report of injury and the date when the employee testified he reported his work restrictions to his manager. The first report of injury lists November 11, 2002, as the date when the employer and insurer received notice. However, it appears that it was on November 12, 2002, that the employee spoke to the employer. He consulted Dr. LaDue on November 11, 2002, and then Dr. Wiest on November 12, 2002, and immediately after his examination with Dr. Wiest, the employee spoke to his manager and provided him with Dr. Wiest=s list of work restrictions.
 The reference to the North Dakota Workers= Compensation Bureau is incorrect; the employee=s 1981 injury claim had been administered by CIGNA Insurance.
 On the work restriction and status forms he completed for the employer and insurer, Dr. Wiest typically listed 1981 as the date of the employee=s right knee injury, with one exception: on the form he prepared on November 12, 2003, he referred to an injury date of 11/11/02.
 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.