SCOTT NIESEN, Employee, v. ADVANCED CIRCUITS and TRAVELERS INS. CO., Employer-Insurer/Appellants, and BLUE CROSS/BLUE SHIELD OF MINN. and MII LIVE, Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

APRIL 19, 2000

 

HEADNOTES

 

NOTICE OF INJURY - TRIVIAL INJURY.  Generally speaking, determinations as to when an employee should reasonably have realized a probably compensable work injury, for purposes of application of the trivial injury rule, should focus not just on the presence or likelihood of actual disability from work but on the reasonable probability of compensability in all of its dimensions, including the reasonable probability that incurred treatment is already compensable.  Where the employee had incurred nearly $1,500 in chiropractic, medical, and physical therapy expenses over a three-month period in treatment for what he evidently understood to be quite probably a work-related injury, substantial evidence did not support the compensation judge=s application of the trivial injury rule to toll the statutory notice requirement, notwithstanding the fact that the employee had no actual loss of work time during the period of his post-injury treatment.

 

Reversed.

 

Determined by Pederson, J., Wheeler, C.J. and Johnson, J.

Compensation Judge:  Bradley J. Behr

 

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

The employer and insurer appeal from the compensation judge's application of the trivial injury rule to toll statutory notice requirements and from the judge=s conclusion that the employee=s C5-6 disc herniation was causally related to the employee=s work for the employer.  We reverse.

 

BACKGROUND

 

In June of 1996, Scott Niesen was employed to do equipment maintenance and repair for Advanced Circuits, Inc. [the employer].    Mr. Niesen [the employee] was thirty-four years old at the time, had worked for the employer for about fourteen years, and was currently earning a weekly wage of $400.  On June 24, 1996, the employee was holding the end of a rope attached through a pulley to a 120-pound overhead hoist that was being removed for repair from an I-beam track about fourteen feet above the employer=s production room floor.  The rope was wound around both of the employee=s hands, and, when the hoist was suddenly slipped from the track to be lowered to the floor, the employee was lifted off the floor by his up-stretched arms and set to rest about six or eight feet away on a tabletop about twenty inches off the floor.  About three days later the employee experienced a stiffness in his neck that evidently prohibited him from turning his head much in either direction.

 

On July 1, 1996, the employee underwent chiropractic treatment as an A[e]stablished patient@ for Aan exacerbation of symptoms: frequent considerable neck and left arm pain.@  Objective findings on that date were as follows: APatient exhibits subluxation complexes at the following levels: c3, c5, t1, t4 and l5.  Grade 2 muscle spasm noted in the cervicothoracic bilaterally.  Static palpation indicates tenderness/trigger points in levators and trapezius bilaterally.@  Although no mechanism of injury was identified, and although the employee=s subjective A[s]ymptoms have not changed since last visit,@ the employee was given a A[n]ew diagnosis@ of Acervical sprain/strain, cervical subluxation and thoracic sprain/strain.@  The employee ultimately received a total of four chiropractic treatments for related symptoms over the course of July 1996, the total charge for which was $156.00.

 

On August 5, 1996, the employee saw internal medicine specialist Dr. Richard Wahlstrom regarding Aa one month history of pain in [the employee=s] thoracic spine which is questionably work related@ that Amay have occurred after pulling on a pulley at work.@  After examination revealed Amuscle tenderness in the mid-scapular area@ and x-rays proved normal, Dr. Wahlstrom diagnosed A[t]horacic muscle strain@ and prescribed physical therapy.  The charge for Dr. Wahlstrom=s consultation was $151.00.

 

On August 13, 1996, the employee commenced about twelve twice-weekly sessions of physical therapy over the course of about six weeks.  His initial physical therapy evaluation on that date reported the following history of injury:

 

[The employee] has had a history of chronic thoracic problems since he dove into a river and hit tree roots causing a cervical disk and hitting his ribs.  He has previous physical therapy about 8 years ago for this problem.  In 6/96 he was complaining of just chronic back stiffness.  Then at work he was holding on to a rope while working with a hoist and was jerked up and over a short distance.  Four days later he woke up with a stiff painful neck.

 

The employee=s subjective complaints at the time of that initial evaluation were

 

mainly between the shoulder blades and he complains of occasional burning in this area.  He also complains of shooting pains in the neck, some pains up into the occipital area as well as more of a moderate pain in the sternum and rib area especially under the left arm.  He also has low back complaints of a chronic nature and states that he has an extra half vertebra in the lumbar spine.  The pain is worse with sleeping and overexertion and riding on the lawn mower and eases with st[r]etching.  He can get comfortable at night but he tends to turn frequently.  In the morning he is worse and better once he moves about.  At the end of the day it depend[]s upon his exertion whether he is better or worse.  Presently he feels he is getting stiffer and tighter.

 

The objective examination at that initial evaluation, which Aconcentrated on the cervical/thoracic area since that=s where his most current pain is originating from,@ revealed that A[c]ompression of the cervical spine caused pain in the thoracic area@ and that palpation while prone found the employee Ato be stiff throughout the upper thoracic on the right,@ with Adecreased right side bending in the upper thoracic, decreased left side bending in the lower thoracic and p[ai]n at the transitions at C7 and L2.@  Passive mobility tests showed a Adecrease in left C7 upglide,@ and myofascial pattern testing showed Avery tight and painful right sternocleidomastoid especially the clavicular division, the right upper trap, the left greater than right middle scalene, the left subclavious and the left levator scapula as well as the diaphragm left greater than right.@  The employee was diagnosed as having a mild scoliosis Awith cervical thoracic rib strain and a history of a cervical disk.  His present stage is chronic.@

 

The employee=s subsequent six-week regimen of physical therapy included ultrasound therapy, electrical stimulation/TENS therapy, and manual and mechanical traction, and he also received treatment for flexibility, strengthening, muscle re-education, and soft tissue and joint mobilization and instruction in posture/body mechanics and home exercise.  Over the course of that treatment regimen, the employee experienced a resolution of his neck symptoms, having lost no time from work for related reasons, although he evidently had to switch work shifts to accommodate the treatment.^[1]  Although the charge for this regimen of physical therapy was $1,170.00, the employee refrained from reporting a work injury to the employer at the time.

 

The employee evidently had no neck symptoms for nearly two years after the completion of his physical therapy in September 1996.  On July 23, 1998, however, he returned to see Dr. Wahlstrom with complaints of a four-day history of sharp pains running from his neck down into his left arm and a two-month history of apparently lesser pain and numbness running from his neck down into his right arm.  X-rays were unremarkable, and Dr. Wahlstrom diagnosed A[n]eck pain with some radicular symptoms and signs of disc herniation@ and scheduled a CT scan.  The scan, conducted on July 28, 1998, was read to reveal a Alarge left-sided herniated nucleus pulposis at C5-6, likely impinging on the cord and the left C6 nerve rootlet,@ together with a Aherniated nucleus pulposis C6-7, also likely impinging on the cord and possibly impinging the right C7 nerve rootlet.@  Dr. Wahlstrom referred the employee first for physical therapy and eventually for a consultation with neurosurgeon Dr. Andrew Smith.  On September 1, 1998, the employer and insurer filed a First Report of Injury based on the June 24, 1996, hoist incident, indicating that they were first notified of the injury on August 4, 1998.

 

The employee saw neurosurgeon Dr. Smith on September 4, 1998.  Dr. Smith recounted the June 1996 hoist incident as Aan injury that occurred two years ago,@ but he did not expressly opine causation of the employee=s complaints by that incident.  After reviewing the employee=s CT scan, Dr. Smith recommended a prompt posterior cervical hemilaminectomy at C5-6, to eliminate what he saw as a Asignificant risk of spinal cord injury,@ and the surgery was performed on September 28, 1998.  By November 3, 1998, the employee=s radicular symptoms had resolved, although he continued to have some residual muscular discomfort in his neck and upper back.  On November 9, 1998, the employee filed a Claim Petition, alleging entitlement to temporary total disability benefits continuing from September 28, 1998, consequent to a work-related injury to his cervical spine on June 24, 1996.  On November 17, 1998, the employee was released to return to work with restrictions.  On November 23, 1998, the employer and insurer answered the employee=s claim petition, denying the claim on grounds both that the employee=s condition was not work related and that he had not furnished statutorily timely notice of injury.

 

On February 13, 1999, the employee was examined for the employer and insurer by orthopedic surgeon Dr. Paul Wicklund.  Dr. Wicklund found no evidence in the medical records that the employee was suffering any symptoms indicative of a disc herniation immediately following the June 1996 injury and no evidence that he was currently suffering from a Gillette-type injury.  In light of those findings, and noting that the employee had had no ongoing symptoms between 1996 and 1998, Dr. Wicklund concluded, and later testified to the opinion, that the employee had suffered only a temporary strain on June 24, 1996, which did not substantially contribute to his cervical herniations.  On May 4, 1999, Dr. Smith signed a Health Care Provider=s Report on which he certified in part that, in his opinion, the employee=s herniated discs at C5-6 and C6-7 were Acaused, aggravated or accelerated@ by the employee=s employment activity on June 24, 1996.

 

The matter came on for hearing on August 12, 1999.  Issues at hearing included whether the employee had sustained a work-related injury to his cervical spine on June 24, 1996, whether the employee=s alleged injury had initially been trivial, thereby tolling commencement of the statutory notice period, and, if so, at what point it became reasonably apparent that the injury was likely to cause compensable disability.  At the hearing, the parties stipulated that the employee was temporarily totally disabled by his neck condition from the date of his surgery to the date he returned to work, although the employer and insurer continued to deny that the condition precipitating the surgery was work related.  In testimony at hearing, the employee expressly agreed that he had reported the hoist incident to Dr. Wahlstom on August 5, 1996, and subsequently to his physical therapists because he thought the incident might be related to the symptoms in his neck.  When asked if he Athought the hoist lifting incident may be the cause of some of the symptoms in your neck,@ the employee answered, AYes.@  The employee also acknowledged at hearing that, prior to asserting the claim here at issue, he had reported four other work-related injuries to the employer - - a low back injury in the mid 1980s, a hernia in about 1988, a bilateral arm tendinitis injury about early 1990, and a recurring tendinitis problem about 1993.^[2]  He testified also that he had refrained from reporting the injury here at issue because he Adidn=t want [my supervisor] hounding me - - harassing me, though, which - - he has done that to people.  And with the therapy it was getting better.@

 

By Findings and Order filed September 24, 1999, the compensation judge concluded in part that the employee was a credible witness and had proven that he sustained a work-related injury to his cervical spine on June 24, 1996.  The judge found further that the employee=s cervical work injury had initially been trivial and that A[i]t did not become reasonably apparent that the injury was likely to cause compensable disability@ until July of 1998, when the employee experienced sharp arm pain and his CT scan demonstrated two cervical disc herniations.  On that finding, the judge concluded that the statutory notice period had not begun to run until July 31, 1998, when the employee was advised of the results of the CT scan, and that the employee=s eventual notice of injury to the employer on August 4, 1998, or at least by the date of his claim petition, was therefore timely.  The judge further concluded that the employee=s trivial work injury in June 1996 had been a substantial contributing factor in the development of the disc herniation at C5-6 for which he had undergone surgery in September 1998.  On those findings the judge awarded certain temporary total and permanent partial disability benefits and medical expenses to the employee and reimbursement to two intervenors.  The employer and insurer appeal on grounds of both notice and causation.

 

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.

 

DECISION

 

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,@ detailed, for instance, in the supreme court=s decision in Issacson v. Minnetonka, Inc., 411 N.W.2d 865, 40 W.C.D. 270 (Minn. 1987).  The rule as applied in Issacson 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.@  Id., 411 N.W.2d at 867, 40 W.C.D. at 274, citing Rebiski v. Pioneer Tel. Co., 262 N.W.2d 424, 30 W.C.D. 216 (Minn. 1978), Barcel v. Barrel Finish, 304 Minn. 536, 232 N.W.2d 13, 28 W.C.D. 4 (1975), and Clausen v. Minnesota Steel Co., 186 Minn. 80, 242 N.W. 397, 7 W.C.D. 176 (1932).  The court in Issacson also 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.@  Issacson, 411 N.W.2d at 867, 40 W.C.D. at 274, quoting 3 A. Larson, The Law of Workmen=s Compensation  ' 78.41(a) (1983).  Reversing a decision of this court and reinstating a compensation judge=s refusal to apply the trivial injury rule, the supreme court in Issacson found substantial evidence that the employee in that case Ahad sufficient information concerning the nature of her injury, its seriousness, and probable compensability@ so as to trigger the running of the statutory notice period.  Issacson, 411 N.W.2d at 867, 40 W.C.D. at 275.

 

The employee in this case received treatment for his June 1996 work injury four times by a chiropractor, once by Dr. Wahlstrom, and a dozen times by physical therapy over a three-month period beginning shortly after the injury=s occurrence.  Those seventeen sessions of treatment were reasonably valued at $1,477.00.  At least by August 5, 1996, the employee was evidently of the opinion that these substantial treatment expenses were quite possibly related to the hoist incident on June 24, 1996, but he did not report a work injury on that date until over two years later - - only after the allegeable injury appeared to be not just a chronic sprain but a disc herniation.  Notwithstanding the employee=s evident presumption that his substantial treatment expenses might well be work related, and notwithstanding the fact that chronic sprains are clearly compensable under the statute, the compensation judge applied the trivial injury rule to toll the statutory notice requirement, explaining in his memorandum that A[a]ccording to Rebiski and prior cases, . . . the length of treatment is not necessarily indicative of the seriousness of an employee=s injury.@  The judge found that A[i]t did not become reasonably apparent that the injury was likely to cause compensable disability@ until July of 1998, explaining in his memorandum that A[t]he employee continued to work@ and Awas justified in believing that he would not sustain disability@ (emphasis added).  The employer and insurer contend that the judge=s application of the trivial injury rule was improper, arguing that the judge A[a]pparently believes the trivial injury rule applies in every single case that does not initially result in disability or any lost time from work.@  They assert that A[t]he fact that an employee is aware that a work injury necessitates the ongoing treatment is irrelevant under Compensation Judge Behr=s rationale@ and that the judge=s failure to see it as relevant Adefeats the purpose of the notice provision.@  Referencing Issacson, they argue that commencement of the statutory notice period does not require lost time from work but simply that the employee recognize the seriousness and Aprobable compensable character@ of his injury.  We agree.

 

As the employer and insurer have emphasized, the employee clearly supposed that the substantial treatment he was receiving from July through September of 1996 might well be treatment for a work injury sustained on June 24, 1996, and yet he made no effort to report such an injury.  Indeed, while acknowledging that he had had experience with several previous workers= compensation claims, the employee suggested, in testimony quoted above, that he intentionally refrained from reporting the injury this time, not because it was trivial (nowhere does the employee testify that he thought the injury was a minor or trivial one) but expressly to avoid harassment.  Although he may not have been disabled from working, and although he may not yet have identified the nature of his injury as a herniated disc as opposed to a chronic sprain, we conclude that it would have been unreasonable for the employee not to recognize the seriousness and probable compensability at least of the $1,477.00 in medical costs that he, as indemnified by the intervenor,^[3] was incurring for his extensive and protracted treatment of at least a chronic sprain that he presumed to be probably work related.  Given the substantiality of those treatment costs and documentation that employee was relating the condition being treated to his accident with the hoist at work, we believe that the employee clearly, Aas a reasonable person,@ should have recognized the Aprobable compensable character@ - - the Aprobable compensability@ - - of the work injury that he had sustained, regardless of whether or not he had yet identified it as a disc herniation or had yet sustained any disability from working as a result of it.

 

The employee bases his argument in support of the compensation judge=s decision on this court=s decision in Lehmann v. Minnesota Department of Transportation, 57 W.C.D. 132 (W.C.C.A. 1997), in which the employee=s post-injury treatment was similarly substantial and the employee similarly did not provide notice of injury until over two years after the injury.  Lehmann is clearly distinguishable, however, in that in that case the early medical records expressly reported no specific injury or history of trauma, and the employee testified that he did not realize a connection between his treated condition and his work activities until about four days before he provided notice of injury.  In the present case, the employee concedes that he supposed a probable connection between his treated condition and the hoist incident shortly after the incident, and his medical records expressly confirm that association at least as early as August 1996.

 

We acknowledge that parameters of the trivial injury rule are far from clear-cut, and we would emphasize that application of the rule is always fact-driven and case-specific.  See Barcel, 304 Minn. 536, 232 N.W.2d 13, 28 W.C.D. 4 (1975); Lehmann, 57 W.C.D. 132.  Generally speaking, however, determinations as to when an employee should reasonably have realized a probably compensable work injury, for purposes of application of the trivial injury rule, should normally focus not just on the presence or likelihood of actual disability from work but on the reasonable probability of compensability in all of its dimensions, including the reasonable probability that incurred treatment is already compensable.  The rule as stated in Rebiski and applied in Issacson provides that the statutory notice period may be tolled until it becomes reasonably apparent that the work injury Ahas resulted in or is likely to cause@ compensable disability.  Rebiski, 262 N.W.2d 424, 426, 30 W.C.D. 216, 217 (Minn. 1978) (emphasis added).  In this case, it is clear that the employee=s injury was already compensable under the statute at least by the end of September 1996, by virtue of the substantial medical expenses that the employee had incurred in treatment of it and the employee=s express supposition that the condition being treated was work related.  Particularly given his experience with previous workers= compensation claims, the employee had every reason to realize that compensability.  In finding that it was not yet reasonably apparent Athat the injury was likely to cause compensable disability,@ and that the employee was therefore Ajustified in believing that he would not sustain disability@ (emphasis added), the judge appears to have erroneously ignored the fact that the employee=s injury had already Aresulted in@Aprobable compensability@ and to have focused too exclusively on an anticipation that the injury was Alikely to@ result in actual disability from work.   Under the facts of this case, this constituted error.

 

Concluding that the judge focused too exclusively on the employee=s ability to continue working with the injury at issue, to the neglect of the substantial treatment expenses that were being incurred for a condition that the employee admittedly related to his work activities, we conclude that the compensation judge=s application of the trivial injury rule in this case was unsupported by substantial evidence and accordingly reverse that ruling of the judge.  Hengemuhle, 358 N.W.2d 54, 37 W.C.D. 235.  Because the employee=s claim is thereby barred by the statutory notice provision of Minn. Stat. ' 176.141, we needn=t address the employer and insurer=s contention that the judge=s finding of causation is unsupported by substantial evidence.