KARL L. ANDERSON, Employee/Appellant, v. FRONTIER COMMC’NS and CNA/AM. CAS., Employer-Insurer, and TWIN CITIES SPINE CTR., Intervenor.
WORKERS’ COMPENSATION COURT OF APPEALS
APRIL 11, 2011
NOTICE OF INJURY - GILLETTE INJURY. Timely notice of a Gillette injury was provided where the employee did not have sufficient information of a compensable injury before his attorney obtained reports from his treating doctors and where the medical records before that time had provided an alternate explanation for his symptoms.
Determined by: Stofferahn, J., Pederson, J., and Wilson, J.
Compensation Judge: Jane Gordon Ertl
Attorneys: DeAnna M. McCashin, Schoep & McCashin, Alexandria, MN, for the Appellant. Kenneth D. Nelson, Law Office of Jeffrey Magnus, Edina, MN, for the Respondents.
DAVID A. STOFFERAHN, Judge
The employee appeals from the compensation judge’s decision denying his claim for workers’ compensation benefits arising out of a Gillette injury. The compensation judge determined the employer did not have notice of the injury as required by Minn. Stat. § 176.141. We reverse.
Karl Anderson began working for Frontier Communications in 1987. Before that, he had worked two years for Frontier’s predecessor doing telephone cable installation and repair. Previous work experience consisted of employment in the mining industry, construction work, production line work, and employment as a hardware stock person. Mr. Anderson was born on July 11, 1955, and has a high school education.
While employed at Frontier, Mr. Anderson transferred to Wheaton, Minnesota, in 1992. He worked in Wheaton until he stopped working for Frontier in 2007. In Wheaton, Mr. Anderson was the “outside” man in a two-person office. Generally, Mr. Anderson was responsible for telephone cable repair and maintenance in Traverse County and parts of Stevens and Grant counties. Mr. Anderson’s supervisor was in Milaca, Minnesota.
In a job description prepared by Frontier, physical requirements of Mr. Anderson’s position were identified as lifting up to 70 pounds, working outside in extreme conditions, and standing, sitting, climbing, bending, stooping and walking on uneven terrain for extended periods on a regular basis. At the hearing, Mr. Anderson testified that his duties included digging out and replacing cable boxes and repairing and replacing cable. Working on cable often meant pulling cable weighing up to 150 pounds off a wheel. He stated one of the most physical parts of his job was bending over and placing flags to mark cable locations at construction sites. In the construction season, he would use seven to ten thousand flags. Frequently, he also had to dig out and replace cable boxes that had been damaged during snow plowing.
Mr. Anderson had no physical restrictions when he began working at Frontier in 1987 and he had no history of back difficulties until 1996. He went to the Wheaton Community Health Center on July 30, 1996, stating that he had low back pain after shoveling dirt all day. Injections of Toradol resolved his pain. On June 29, 1998, he returned to the clinic with low back and leg pain he experienced as he was getting out of his truck. He was given pain medications and had no further treatment for his low back until 2007.
Mr. Anderson testified that his low back and leg pain progressively worsened beginning in 2004 and 2005. He did not seek medical treatment for his symptoms because, “I just figured I was getting old.” By the time he saw Dr. Stanley Gallagher at the Wheaton Clinic in March 2007, he was icing his back every night so he could get to sleep and go to work the next day. Mr. Anderson continued to do his regular job for Frontier during this period.
Mr. Anderson saw Dr. Gallagher on March 21, 2007. He reported pain in his right wrist and hand, as well as pain in his low back and right leg. According to the chart note from that date, he told Dr. Gallagher that “if he does anything at all his leg hurts.” No mention was made by Dr. Gallagher of Mr. Anderson’s work activity. X-rays showed degenerative changes in his low back and wrist; therapeutic injections were given. No work restrictions were placed on Mr. Anderson. Mr. Anderson reported to Dr. Gallagher when he returned on April 4, that he had experienced 30-40% improvement in his low back symptoms from the injections. Dr. Gallagher referred Mr. Anderson to Dr. Manuel Pinto at Twin Cities Spine Center.
Dr. Pinto saw Mr. Anderson for the first time on May 8, 2007. The history he took was that of gradually worsening buttock and low back pain over 5½ to 6 years. Dr. Pinto’s impression was “1. Grade 2 spondylolisthesis L5-S1, 2. spinal stenosis L5-S1, 3. degenerative disc disease L4-5, L5-S1.” Cardiac review was recommended because of Mr. Anderson’s medical history and after that review was completed, Dr. Pinto recommended surgery. Dr. Pinto did not place any restrictions on Mr. Anderson and he continued to do his regular job until July 4 when he stopped working.
On July 6, 2007, Dr. Pinto performed an anterior discectomy and fusion with instrumentation at L4-5 and L5-S1. A revision surgery was done on July 12 because of recurrent radiculopathy. Mr. Anderson continued to experience radicular symptoms in his right leg and at a follow-up appointment on November 6, 2007, Dr. Pinto assessed “right iliac crest fasciitis.”
Mr. Anderson returned to Dr. Pinto on January 8, 2008, with complaints of continuing low back and right leg symptoms. He also told Dr. Pinto he was having numbness in his left hand. Dr. Pinto ordered a cervical MRI which was done on February 12, 2008. It showed mild canal stenosis and foraminal narrowing at C5-6. Dr. Pinto noted that “if he continues to be very symptomatic involving his left upper extremity, he can contact one of my partners for a consultation.” Dr. Pinto also concluded at the time of the January 8 visit that Mr. Anderson had pseudoarthrosis at L5-S1 and recommended further surgery. On February 15, Dr. Pinto removed the pedical screw and performed a “redo” of the fusion at L5-S1.
Although Mr. Anderson’s condition improved, he was not able to return to work at Frontier and he has not been employed since his first surgery. He was placed on long term disability through Frontier and then began receiving Social Security disability benefits. Mr. Anderson consulted an attorney about the coordination of those benefits and learned for the first time of the existence of Gillette claims.
In response to a letter from Mr. Anderson’s attorney, Dr. Gallagher wrote a report on May 8, 2009, setting out his opinion that Mr. Anderson’s employment from 1987 to 2007 was a significant aggravation to a preexisting condition. Dr. Pinto expressed the same opinion in a report of May 26, 2009.
Mr. Anderson’s attorney advised Frontier of Mr. Anderson’s Gillette injury claim on May 13, 2009, and filed a claim petition on June 12, 2009. Frontier and its insurer, CNA, denied liability. Dr. John Dowdle conducted an independent medical examination on September 18, 2009. He concluded that Mr. Anderson’s low back condition was not related to his employment with Frontier but, instead, was due to a preexisting degenerative condition.
The employee’s claim was heard by Compensation Judge Jane Gordon Ertl on June 3, 2010. In her Findings and Order of August 17, 2010, the compensation judge determined that Mr. Anderson had sustained a Gillette injury as a result of his employment with Frontier that culminated on July 4, 2007, the last day he worked. She also concluded Mr. Anderson was permanently and totally disabled from his work injury. However, the compensation judge concluded that Frontier had not received timely notice of the injury. Mr. Anderson’s claims were denied and he appeals.
Mr. Anderson was the only witness at the hearing to testify on the issue of notice. He stated that he knew his work made his back worse but that all activity, including golf, made his back worse. He concluded that his low back problems were the result of getting older. Mr. Anderson was not aware that his low back condition might be considered a work injury until he met with a lawyer. His doctors had diagnosed his condition as being due to degenerative changes and no doctor had ever told him that his back condition might be related to his work at Frontier.
An employee is required to give notice of a work injury to the employer unless the employer has actual knowledge of the injury. Failure to provide timely notice may preclude a claim for workers’ compensation benefits. Minn. Stat. § 176.141. In the case of a Gillette injury, the notice period begins to run “from the time it becomes reasonably apparent to the employee that the injury has resulted in, or is likely to cause, a compensable disability.” Isaacson v. Minnetonka, Inc., 411 N.W.2d 865, 867, 40 W.C.D. 270, 274, (Minn. 1987); Swenson v. Cal-Mech, 50 W.C.D. 1 (W.C.C.A. 1993).
In the present case, the compensation judge concluded that it should have been reasonably apparent to Mr. Anderson by July 4, 2007, when he stopped working, that he had a compensable disability. The compensation judge determined that Mr. Anderson’s failure to give notice to Frontier within 180 days of that date barred his claim for workers’ compensation benefits. We disagree.
Mr. Anderson began treating for his low back in March 2007 when he saw his family physician, Dr. Gallagher. Mr. Anderson at that time also had pain in his hand and wrist. Dr. Gallagher attributed the hand problems and the low back problem to degenerative changes. There was no discussion of Mr. Anderson’s work activity at Frontier. Mr. Anderson began treating with Dr. Pinto in May 2007. Dr. Pinto’s assessment of Mr. Anderson’s condition was a degenerative disc disease. There was no discussion of Mr. Anderson’s work activity playing a role in this condition. Neither Dr. Gallagher nor Dr. Pinto placed work restrictions on Mr. Anderson and he continued to perform his regular job until his surgery in July 2007. After his surgery, Mr. Anderson discussed left arm numbness symptoms with Dr. Pinto in January 2008. An MRI done at that time suggested degenerative changes in the cervical spine as the reason for those symptoms. At no time before his attorney wrote to Dr. Pinto and Dr. Gallagher, did either doctor suggest his work activity was a factor in his low back condition.
On appeal, Mr. Anderson argues that this case is analogous to the facts considered in Fitzgerald v. Davidson Hotel Co., slip op. (W.C.C.A. Apr. 9, 1999). In that case, the employee told two of her doctors that she thought her work was aggravating her neck symptoms. Nevertheless, the compensation judge found that the employee did not have sufficient knowledge of a work injury and had no obligation to give notice until she had consulted with an attorney. In affirming, this court stated, “Nor is there any dispute the employee told Dr. Hosko and the doctors at the Ramsey Clinic that work increased her neck symptoms. Such knowledge is not, however, equivalent to knowledge that the employee had a probable compensable claim against the employer for a Gillette-type injury.”
In accordance with Fitzgerald is our decision in Beckmann v. Quebecor Printing,slip op. (W.C.C.A. June 9, 1997). In Beckmann, the employee knew that he had increased pain in his back and hip after a work day and work week but he was not sure if his symptoms were due to work or old age. Further, the employee testified that his doctors told him that he had arthritis and no doctor told him he had a work-related injury. This court affirmed a conclusion that the employee gave timely notice when he advised the employer of a claim after he had consulted with an attorney.
Frontier argues that a medical report establishing a Gillette injury is not required before notice must be given. We agree and we are not establishing such a rule with this decision. The question here is whether Mr. Anderson’s actions were reasonable given the information available to him. In considering that question, one must look at the knowledge the employee possessed. This court has issued decisions in which it was determined that the employee had failed to give timely notice of a potential Gillette injury. The most significant factor in those cases was the employee’s knowledge of a compensable injury.
In the present case, even though Mr. Anderson knew that work bothered his low back, he also knew that all activity bothered his low back; his doctors had identified his low back symptoms as being due to a degenerative process, he had symptoms in his hand and his arm which his doctors also attributed to degenerative changes; and at no time did any of his doctors ever discuss with him the possibility that his problem was work-related. “The question of a Gillette injury primarily depends on medical evidence.” Steffen v. Target Stores, 517 N.W.2d 579, 581, 50 W.C.D. 464, 467 (Minn. 1994). We believe that Mr. Anderson should not have been required to give notice to his employer that his problems were the result of his work history when there was no medical evidence making that connection and where the existing medical evidence provided a different reason for his problems. Considering the evidence as a whole, we conclude that substantial evidence does not support a conclusion that a “reasonable” person would have known he had a compensable injury which needed to be reported to his employer until Dr. Gallagher and Dr. Pinto provided reports establishing a work relationship to Mr. Anderson’s attorney. The letter sent by Mr. Anderson’s attorney at that time constituted timely notice under the statute and case law.
The compensation judge’s determination on the issue of notice is reversed. The employee is awarded compensation in accordance with the balance of the Findings and Order.
 See Gillette v. Harold, Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960).
 Ringham v. SuperValu Stores/Cub Foods, slip op. (W.C.C.A. July 12, 2000) (employee’s doctor noted work was aggravating her condition and he took her off work); Van Norstrand v. McLaughlin & Schultz, Inc., slip op. (W.C.C.A. Sept. 19, 2002) (employee discussed with his doctor whether his bilateral carpal tunnel was related to his work); Metters v. Northwest Airlines, No. WC05-150, (W.C.C.A. Aug. 17, 2005) (employee discussed with her doctor the work origins of her carpal tunnel syndrome); Dickson v. Minnesota Vikings Football Club, No. WC08-132 (W.C.C.A. Sept. 9, 2008) (employee had consulted with attorneys concerning his different injuries).