DIANNA RINGHAM, Employee/Appellant, v. SUPER VALU STORES/CUB FOODS and TRAVELERS INS. CO., Employer-Insurer, and MILLS FLEET FARM and HARTFORD INS. CO., Employer-Insurer/Cross-Appellants, and WAUSAU INS. CO., MEDICAL ADVANCED PAIN SPECIALISTS, and PDR-BROOKLYN PARK, Intervenors, and SPECIAL COMPENSATION FUND.

 

WORKERS= COMPENSATION COURT OF APPEALS

JULY 12, 2000

 

HEADNOTES

 

CAUSATION - GILLETTE INJURY.  Substantial evidence, including the opinions of two medical experts, supports the compensation judge=s finding that the employee sustained a Gillette injury to her low back in September 1995.

 

NOTICE OF INJURY - GILLETTE INJURY.  The evidence is minimally adequate to support the finding that the employee should have recognized the probable compensable character of the injury by September 18, 1995, and failed to give the employer and insurer timely statutory notice of the Gillette injury.

 

NOTICE OF INJURY.  The compensation judge properly concluded, on the facts peculiar to this case, that the employer did not have actual knowledge of a work-related low back injury within the meaning of Minn. Stat. ' 176.141.

 

APPORTIONMENT; PRACTICE & PROCEDURE - REMAND.  The compensation judge=s finding that apportionment of wage loss and medical benefits Awould not be appropriate@ must be vacated and remanded for rede­termination where this court is unable to determine what the compensation judge intended in the absence of clear findings of fact supporting her conclusion.

 

Affirmed in part, vacated and remanded in part.

 

Determined by: Johnson, J., Rykken, J., and Pederson, J.

Compensation Judge: Joan G. Hallock

 

 

OPINION

 

THOMAS L. JOHNSON, Judge

 

The employee appeals from the compensation judge=s finding that Mills Fleet Farm did not have notice or actual knowledge of the employee=s September 9, 1995, personal injury and the finding that apportionment to the employee=s 1980 injury was not appropriate.  Mills Fleet Farm and Hartford Insurance Company cross-appeal from the compensation judge=s finding that the employee sustained a Gillette^[1]-type low back injury on September 9, 1995.  We affirm the compensation judge=s findings regarding the Gillette injury and lack of notice.  We vacate the finding regarding apportionment to the 1980 injury and remand for additional findings.

 

BACKGROUND

 

Dianna Ringham, the employee, sustained an injury on October 7, 1980, to her low back and neck while working at Super Valu Stores/Cub Foods.  Super Valu and its insurer, Travelers Insurance Company, admitted liability for the employee=s personal injury. 

 

Following her 1980 injury, the employee sought treatment from Robert F. Bednar, D.C.  She first saw Dr. Bednar on November 7, 1980, complaining of headaches and neck, shoulder and low back pain.  The employee gave a history of using a new pricing scanner at work and experiencing gradually worsening pain in her neck and shoulders.  X-rays reflected disc space narrowing at L5-S1 with an accentuated lordotic curve.  Dr. Bednar diagnosed acute cervico-dorsal and acute lumbo-sacral strain and provided chiropractic treatment.  By  report dated January 23, 1981, the doctor stated the employee had been totally disabled since December 1, 1980.  In a report filed July 30, 1981, Dr. Bednar concluded the employee sustained permanent partial disability to her neck and low back secondary to a November 7, 1980 injury.  He recommended a neurologic and orthopedic referral for further testing and diagnosis.  (Hart. Ex. 4.)

 

On March 11, 1981, Dr. Robin C. Crandall examined the employee at the request of Travelers Insurance Company.  Dr. Crandall reported the employee developed pain in her right arm and back which Astarted with a new scanning type machine which was placed at Cub Foods which made the patient stand in an unusual fashion and apparently pull the foods over the machine so that this could be read via a computer.  The change in style was such that instead of running keys with the right hand she was pushing heavy objects with the right hand.  She states that over the 2 months while this was going on she was seeing Dr. Bednar a chiropractor and continued to go to work.  By November 30, however, her pain became so severe that she had to leave work.@  X-rays of the cervical spine were normal.  Dr. Crandall diagnosed levator scapulae syndrome in the right side of the neck, but concluded the condition would likely resolve without permanent disability.  The doctor recommended a cervical collar at night and a course of home cervical traction.  (Trav. Ex. 1-1.)

 

On March 25, 1981, the employee saw Dr. Alvin Shemesh.  She gave a history of the onset of right-sided neck pain and low back pain as a result of a lot of reaching and pulling after Cub switched to electronic scanners about October 1, 1980.  Dr. Shemesh opined the employee injured her back in October 1980, and rated a 10 percent permanent partial disability of the cervical spine and 10 percent of the lumbar spine as a result of that injury.  (Trav. Ex. 1-2; Hart. Ex. 3.)

 

The employee was examined by John W. Hammond, D.C., on September 28, 1981, at the request of Travelers.  The employee complained of an onset of neck and back symptoms after a new scanner was installed at Cub Foods.  Dr. Hammond diagnosed a mild cervico-dorsal and lumbo-sacral myofascial strain syndrome.  The doctor concluded the employee had no permanent impairment related to her 1980 employment activities and found no evidence of any functional loss.  (Trav. Ex. 1-3.)

 

The employee was hospitalized at Mount Sinai on March 30, 1982 for acute low back pain.  Dr. Shemesh examined the employee on March 30, 1982.  The doctor diagnosed acute chronic low back syndrome, ligamentous and muscular strain of the cervical spine and radiculopathy.  (Trav. Ex. 1-4.)  A CT scan of the employee=s lumbosacral spine on March 31, 1982, showed no evidence of a herniated disc.  X-rays were normal.  (Trav. Ex. 1-6.)  Dr. Lowell Baker examined the employee at the request of Dr. Shemesh and diagnosed cervical neck pain and low back pain secondary to strain.  Dr. Baker recommended the employee continue with her current therapy.  (Trav. Ex. 1-5.)  The employee was discharged from Mount Sinai Hospital on April 9, 1982, following treatment with heat, sedation, muscle relaxant medications and bed rest.  Dr. Baker=s discharge diagnosis remained unchanged.  (Trav. Ex. 1-7.) 

 

The employee returned to Dr. Shemesh on February 14 and March 7, 1983.  In March 1983, Dr. Shemesh stated the employee could work given the opportunity for frequent rests and no lifting over 20 pounds.  (Hart. Ex. 3.)

 

The employee was examined by Dr. Alexander Lifson on January 9, 1984, on referral from Dr. Shemesh.  The doctor reviewed a January 8, 1984 lumbar CT scan which was within normal limits and showed no evidence of a disc problem or stenosis.  Dr. Lifson diagnosed chronic musculoligamentous strain and possible mild mechanical low back pain syndrome with emotional involvement and secondary gains.  Dr. Lifson recommended conservative treatment without surgery.  (Trav. Ex. 1-8.) 

 

Dr. Hammond re-examined the employee on March 29, 1984 and concluded the employee had a chronic neck and back condition prior to October 1980.  The doctor stated the employee=s work duties in October 1980 caused a temporary aggravation of the employee=s pre-existing condition that had resolved by September 1981.  (Trav. Ex. 1-9.)

 

In January 1987, the employee commenced chiropractic treatment with Dr. Thomas Trainor.  The employee gave a history of a work injury to her neck and low back, three minor car collisions and various slips on ice and stairs over the years.  Dr. Trainor diagnosed a grade I degenerative spondylolisthesis at L4-5 with degenerative facet disease and spinal stenosis.  The doctor also noted a moderate-sized, extruded left-sided foraminal disc herniation with compression of the left L4 nerve root.  The employee continued to treat with Dr. Trainor through 1995.  (Hart. Ex. 6.)

 

Following her October 1980 injury, the employee was off work for a period of time, but eventually returned to work at Super Valu.  She left Super Valu in 1984 or 1985.  (T. 72-73.)  In 1986, the employee began providing day care services in her home.  (T. 73.)  In June 1989, the employee went to work for Mills Fleet Farm.  She testified that when she started that job she had no restrictions on her ability to work.  (T. 76-77.)  For three years, the employee performed office duties in the data processing department.  The employee then transferred to the housewares department.  This job involved removing houseware products from cartons, loading the product onto carts, and stocking shelves.  The shelves ranged from floor length to over the employee=s head and much of her work was done on ladders.  The employee missed time from work occasionally because of low back problems and for chiropractic treatments.  (T. 32-34.) 

 

In February 1995, the employee transferred to the paint department.  In that department, the employee mixed one and five-gallon cans of paint, gave advice to customers and stocked shelves.  The paint stocking job was similar to the employee=s job in the housewares department.  The employee worked a 40 hour week doing restocking daily.  The spring and summer months were the busiest in the paint department.  (T. 35-40.)

 

In July 1995, the employee noted the onset of pain running down the back of her left leg.  (T. 40-41.)  She was seen at the Camden Clinic on August 3, 1995, complaining of an acute onset of low back pain as she was getting out of the bathtub.  On examination, the doctor noted tenderness at the left SI joint and limited backward flexion.  The doctor diagnosed an acute sacroiliac joint strain in a patient with chronic low back pain.  The doctor recommended the employee return to work with a 20-pound lifting restriction and no ladder climbing for three days.  (Trav. Ex. 1-11.)  By September, the symptoms had progressed to the point where the employee had trouble picking up her left foot.  (T. 41.)  The employee=s last day of work for Mills Fleet Farm was September 15, 1995.  (T. 43.)

 

On September 16, 1995, the employee again saw Dr. Trainor complaining of increased low back and left leg pain over the past few days.  Dr. Trainor noted the employee Afelt she has done too much physical work.@ (Hart. Ex. 6.)  On September 18, 1995, the employee returned to Camden Clinic and saw Dr. Mark Millis.  The employee gave a history of low back pain over the last two weeks with a flare-up over the weekend.  AShe states that she sits for a prolonged period of time.  At work it has really been aggravating every time she sits, stands or moves around, and she has to do a lot of bending and squatting.@  On examination, Dr. Millis noted tenderness at the paralumbar region of L5-S1, but flexion and straight leg raising were normal.  The doctor diagnosed left side sciatica with possible L5-S1 disc impingement.  (Hart. Ex. 7.)  Dr. Millis ordered an MRI scan which was obtained on September 28, 1995.  The scan showed degenerative spondylolisthesis at L4-5 with severe degenerative facet disease and mild central spinal stenosis.  The scan also reflected a moderate-sized, extruded left-sided disc herniation with mild displacement and compression of the left L4 nerve root.  (Pet. Ex. H.) 

 

Some time after she saw Dr. Millis on September 18, 1995, the employee spoke with Kevin Pazen, Fleet Farm=s store manager.  The employee told him that she had Agone to the doctors and they - - were suspicious I had disc involvement and had scheduled an MRI for me.@  (T. 45.)  The employee testified she did not at any time report to anyone at Mills Fleet Farm that she had injured her back while working there.  Further, the employee stated she told no one at Mills Fleet Farm that her work caused or aggravated her back problem.  (T. 89-91.)

 

Dr. Millis referred the employee to Dr. Rolf S. Hauck, an orthopedic surgeon, whom she saw on October 4, 1995.  The doctor recorded a history of chronic back pain since a 1980 work injury.   AFor the past six years she has worked at Fleet Farm, three years in the office, and the last three years stocking on the floor.  About two weeks ago the patient developed significant left leg pain which is a new symptom for her with increasing leg and back pain.  She missed work for three days this week, unable to continue.@  Dr. Hauck diagnosed chronic degenerative disc disease at L4-5 with a new disc herniation at that level causing radiating leg pain.  The doctor took the employee off work and prescribed an epidural steroid injection.  By October 27, Dr. Hauck felt surgery might be necessary and referred the employee to Dr. Paul Crowe.  (Pet. Ex. F.) 

 

The employee saw Dr. Crowe on November 6, 1995.  The doctor concluded the employee=s leg pain was due to a herniated disc at L4-5.  Dr. Crowe recommended fusion surgery which the employee rejected. Dr. Crowe and the employee then decided on a left L4-5 microdiscectomy without a fusion which was performed on December 28, 1995.  The employee was discharged from North Memorial Medical Center on December 30, 1995.  The employee returned to see Dr. Crowe on January 10, 1996.  She reported her left leg pain was gone immediately after the surgery but returned about three days later and had been intense and severe since.  The doctor ordered a lumbar MRI scan that was taken on January 11, 1996.  The scan showed the L4-5 laminectomy with an enhancing scar on the left deforming the thecal sac and within the neural exit foramen and grade I spondylolisthesis of L4 on L5.  (Pet. Ex. D.)  By March 4, 1996, Dr. Crowe noted the employee was not feeling better but stated he could not find an objective reason for her pain.  The doctor thought a pain clinic might be appropriate.  A lumbar CT scan on May 3, 1996 showed a slight anterolisthesis of L4 on L5 similar in appearance to that on the January 1996 MRI scan.  (Pet. Ex. D.)  On May 8, 1996, Dr. Crowe stated he was no longer considering operative intervention but concluded the employee had an unexplained pain problem.  On May 29, 1996, Dr. Crowe noted the employee would be moving to Phoenix, Arizona in two days.  The doctor prescribed some pain medication to help her with the move.  Dr. Crowe thought the employee would eventually need fusion surgery and gave the employee a list of doctors in Arizona.  (Pet. Ex. F.)

 

The employee moved to Phoenix, Arizona with her husband in May 1996.  On October 15, 1996, she saw Dr. Dennis G. Crandall for a recommended decompression and fusion at L4-5.  Dr. Crandall diagnosed spinal instability with 8mm of spondylolisthesis at L4-5 and left perineural fibrosis.  Dr. Crandall performed a laminotomy, foraminotomy and fusion at L4-5 on October 15, 1996.  (Pet. Ex. C.) 

 

In the spring of 1997, the employee and her husband moved back to Minneapolis.  On May 15, 1998, the employee was examined by Dr. Robert A. Wengler.  Based on his examination of the employee and review of her medical records, Dr. Wengler concluded the employee suffered a herniated L4-5 disc in the summer of 1995.  Dr. Wengler opined the employee=s work activities at Mills Fleet Farm were a cause of the L4-5 disc herniation.  Specifically, the doctor testified that lifting chemicals and paints at Fleet Farm ultimately resulted in the disc herniation.  Dr. Wengler rated a 19 percent whole body permanent disability secondary to the Gillette injury.  The doctor further opined the employee was temporarily and totally disabled as a result of her injury for one year after the October 1996 fusion surgery.  Finally, Dr. Wengler concluded the employee=s 1980 injury was also a significant contributing cause of the employee=s current disability and need for medical treatment.  Dr. Wengler apportioned 5/19th of the employee=s disability to the 1980 injury and the balance to the 1995 injury.  (Pet. Ex. A.)

 

On July 23, 1998, the employee was examined by Dr. Bruce Van Dyne, a neurologist, at the request of Mills Fleet Farm.  Dr. Van Dyne diagnosed low back and radicular left leg symptoms which developed on September 15, 1995, due to a degenerative lumbar disc herniation at L4-5, chronic low back syndrome of uncertain etiology and history of a prior 1980 low back injury.  The doctor concluded the employee did not sustain a specific or Gillette-type injury to her low back as a result of her work for Mills Fleet Farm.  The doctor stated the employee=s work duties at Mills Fleet Farm were quite variable and not highly repetitious or patterned.  Further, the doctor stated the employee=s diagnosed spondylolisthesis, present for many years, was the most important contributing cause to the development of degenerative disc disease at the L4-5 level.  (Hart. Ex. 2.)

 

On September 9, 1999, the employee was examined by Dr. Paul E. Cederberg at the request of Travelers.  The doctor diagnosed lumbar degenerative disc disease, status post L4-5 laminectomy and fusion.  Dr. Cederberg opined the employee=s 1980 work injury was unrelated to her 1995 complaints.  The doctor opined the employee sustained a Gillette-type work injury at Mills Fleet Farm in 1995, and that injury was the sole cause of her need for surgery and her current medical condition.  The doctor rated a 12 percent whole body disability that he related entirely to the September 1995 Gillette injury.  (Trav. Ex. 1-12.)

 

The employee filed a claim petition in May 1999, seeking temporary total disability benefits from September 15, 1995, a 19 percent whole body disability and medical expenses.  The case was heard by a compensation judge at the Office of Administrative Hearings on September 15, 1999.  In a Findings and Order filed November 19, 1999, the compensation judge found the employee sustained a Gillette injury to her low back on September 9, 1995.^[2]  (Finding 49.)  The compensation judge found the employee Aknew or should have known from talking to Dr. Millis on September 18, 1995 that bending and squatting at work was an aggravating factor.@  The judge found Mills Fleet Farm and Hartford did not have timely notice of the employee=s September 9, 1995 injury.  (Finding 50.)  The compensation judge further found, that if Mills Fleet Farm had received adequate notice, the employer and Hartford would have full liability for wage loss and medical benefits; apportionment between the 1995 and 1980 injuries would not be appropriate.  (Finding 57.)  The employee appeals the compensation judge=s findings regarding notice and causation.  Mills Fleet Farm/Hartford appeal the compensation judge=s finding of a 1995 Gillette injury.

 

STANDARD OF REVIEW

 

On appeal, the Workers' Compensation Court of Appeals must determine whether "the 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, "they 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, findings of fact should not be disturbed, even though the reviewing court might disagree with them, "unless 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.@  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

 

DECISION

 

Gillette Injury

 

The compensation judge found the employee sustained a Gillette-type injury to her low back in September 1995.  Mills Fleet Farm and Hartford contend this finding is unsupported by substantial evidence.  They argue the employee=s disability after September 1995 was due to the 1980 injury and the August 3, 1995 incident when the employee had an onset of low back pain while getting out of the bathtub.  The cross-appellant relies on Dr. Van Dyne=s opinion that the employee=s work activities with Mills Fleet Farm were variable and not repetitious.  Accordingly, Mills/Hartford ask this court to reverse the compensation judge=s finding that the employee sustained a Gillette injury in September 1995.  We are not persuaded.

 

Dr. Wengler was given a description of the employee=s work activities at Mills Fleet Farm, and opined the employee sustained a Gillette injury as a result of her work activities.  (Pet. Ex. A.)  Dr. Cederberg also stated the employee=s need for low back surgery and subsequent medical care was due to a 1995 Gillette injury at Mills Fleet Farm.  (Trav. Ex. 1-12.)  The cross-appellant does not contend either doctor lacked foundation for his opinion.  Although there is medical evidence to the contrary, it is the compensation judge=s responsibility, as the trier of fact, to resolve conflicts in expert testimony.  Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).  The compensation judge=s finding is supported by substantial evidence and is affirmed.

 

Notice

 

Although the compensation judge found the employee sustained a Gillette-type personal injury on September 9, 1995, the judge further found that Mills Fleet Farm did not receive notice of the employee=s September 9, 1995 Gillette injury until June 18, 1998.  The judge also found the employee knew or should have known from talking to Dr. Millis on September 18, 1995 that her work activities at Mills Fleet Farm were an aggravating factor to her low back injury.  Accordingly, the compensation judge found Mills Fleet Farm did not receive statutory notice of the employee=s injury.  (Finding 50.)  The employee contends these findings are unsupported by substantial evidence.

 

The employee testified she had suffered from ongoing low back pain and radiculitis since her 1980 injury.  Before starting her job at Mills Fleet Farm, the employee testified she continued to have symptoms from the 1980 injury but was able to function.  (T. 28.)  The records of Dr. Trainor reflect periodic flare-ups of the employee=s low back condition and occasional chiropractic treatment through September 8, 1995.  (Hart. Ex. 6.)  Dr. Millis= September 18, 1995 office note does not mention a Gillette injury or delineate the cause for the employee=s increased symptoms.  (Hart. Ex. 7.)  Given these facts, the employee argues it was reasonable for her to assume her ongoing back difficulties were a continuation of the symptoms she had suffered since her 1980 injury.  Causation in a Gillette-type injury is, the employee asserts, a complex issue and resolution of the issue depends primarily on medical evidence.^[3]  While the employee may have known her work duties were aggravating her low back condition, she asserts this knowledge alone was not adequate to put her on notice that she had sustained a new Gillette injury.  The employee contends she did not understand, nor was she told, in 1995 that she had sustained a new Gillette-type injury.  The employee argues she could not provide written notice until she was advised by Dr. Wengler in 1998 that there existed a causal relationship between her work duties at Mills Fleet Farm and her low back condition.  Accordingly, the employee contends the June 1998 notice to the employer was timely.

 

Minn. Stat. ' 176.141 provides, in relevant part:

 

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 date the incapacity ceases.

 

The time for giving written notice begins to run when the employee, as a reasonable person, should recognize the nature, seriousness and probable compensable character of the injury or disease.  Issacson v. Minnetonka, Inc., 40 W.C.D. 270, 411 N.W.2d 865 (Minn. 1987); Bloese v. Twin City Etching, Inc., 316 N.W.2d 568, 34 W.C.D. 491 (Minn. 1982); Larson, The Law of Workers= Compensation, ' 78.41(a) (1983).^[4]  AThe limitation period does not begin to run from the time there exists a medical opinion on causation, but rather from the time the employee has sufficient notice from any source to put the employee on notice.@  Jones v. Thermo King, 461 N.W.2d 915, 917, 43 W.C.D. 458, 461 (Minn. 1990).  The date on which the employee obtained knowledge sufficient to require the employee to give written notice to the employer is generally a question of fact.  Barcel v. Barrel Finish, 232 N.W.2d 13, 28 W.C.D. 4 (Minn. 1975).

 

The employee=s last day at work for Mills Fleet Farm was September 15, 1995.  She testified that by that time her left leg pains were so severe she had Atrouble even picking up my left foot.@  (T. 41.)  The employee saw Dr. Mark Millis on September 18, 1995.  In his office note, Dr. Millis recorded the following history: AAt work it has really been aggravating every time she sits, stands or moves around, and she has to do a lot of bending and squatting.@  Dr. Millis took the employee off work.  (Hart. Ex. 7.)

 

On direct examination the following questions and answers were recorded:

 

Q:  When did you first find out from any physician that your work activities at Mills Fleet Farm may have contributed to your disc herniation and eventual surgeries that you had?

A:  Dr. Markus on the 18^th of September said - - the day he told me I couldn=t be going back to work, he says you can=t be doing this bending and stocking and this lifting. . . .

Q:  But at what point did a physician not tell you that you shouldn=t do the physical work anymore.  You=ve already testified to that, but at what point did any physician tell you about the possible cause of your back problems, what may have caused your back problems, who told you about that, if anyone?  Did any doctor ever tell you what the cause of your - -

A:  I don=t believe - - either I=m not understanding your question or --

Q:  I=ll rephrase it, I=ll rephrase it.  Did any physician ever tell you what might have caused your shooting left leg pain and your disc herniation which occurred in 1995?

A:  Well, yes, when I told them what type of work I did they said you know that that definitely could cause this.  (T. 58-59.)

 

* * *

 

Q:  Okay.  And did you know - - as of September 1995 did you yourself know what was causing your problems?

A:  Well, let me - - Dr. Markus and I had a discussion on the 18^th of September and - - about my work, and I do believe that what I - - you know we did talk about how hard I worked, what kind of lifting I did, and that my back was - - this - - you know I was having this problem with my back and that this was probably a result of abusing my back over the years with this kind of work.  (T. 59-60.) 

 

On cross-examination, the following questions and answers were recorded:

 

Q:  When he says here [9/18/95 office note of Dr. Millis] at work it has really been aggravating, did you tell him that, did you tell him that at work the work was really aggravating you?

A:  Either one of us may have said it.  He may have said it, I may have said it.

Q:  It=s true, isn=t it, Ms. Ringham, that when you saw Dr. Millis in September, 1998^[5] you kind of understood that the work at Mills might have been bothering your back, that=s true, isn=t it?

A:  Well, something definitely was.

Q:  Is what I said true?

A:  Yes, but I wasn=t 100 percent sure that that was what it was.  (T. 113.)

 

Additionally, in 1977, the employee worked at Parker Hannifan when she developed tendinitis in her left shoulder.  The employee testified the injury was caused by the work she was doing which required repetitive motion of her left arm.  The employee reported the injury to her employer and her medical bills were paid by the workers= compensation insurer.  (T. 91-92.)  Thus, the employee had some knowledge of repetitive stress injuries.  This knowledge, together with the testimony set forth above, minimally supports the compensation judge=s findings regarding notice.  While we acknowledge this record would clearly support a different result, we cannot conclude the compensation judge=s findings of fact are clearly erroneous.  AWhere more than one inference may reasonably be drawn from the evidence, the compensation judge's findings shall be upheld.@  Nord, 360 N.W.2d at 342, 37 W.C.D. at 371.  The compensation judge=s decision that the employee failed to provide written notice to the employer within 180 days of September 9, 1995 must, therefore, be affirmed.

 

Actual Knowledge

 

The notice provision of Minn. Stat. ' 176.141 is satisfied either by written notice provided by the employee or actual knowledge by the employer of the occurrence of the injury.  The employee here contends Mills Fleet Farm had sufficient information to put them on inquiry as to the nature and cause of the employee=s disability after September 15, 1995.  Accordingly, the employee contends the compensation judge erroneously found the employer did not have notice.

 

The employee asserts that actual knowledge requires only that the employer have knowledge of the disability; knowledge of a causal relationship between the work and the disability is not necessary.  In support of this argument, the employee cites several cases.  In Boldt v. Jostens=, Inc., 261 N.W.2d 92, 30 W.C.D. 178, 182 (Minn. 1977), the employee left work because of a lung condition subsequently diagnosed as Good Pasture=s syndrome, a condition then described as being of unknown etiology.  On appeal, Jostens= contended the employee did not give notice as required by Minn. Stat. ' 176.141.  The supreme court concluded this argument had Ano merit since relators concede that Jostens= had actual knowledge in May 1972 that the employee was quitting work be­cause of her lung condition.  Knowledge of the disease, as distinguished from knowledge of causal relationship between the disease and the employment, is sufficient.@  (Citing Fitch v. Farmers Union Grain Terminal Assn., 274 Minn. 234, 143 N.W.2d 192, 23 W.C.D. 831 (1966)).  In Greene v. W & W Generator Rebuilders,  302 Minn. 542, 224 N.W.2d 157, 27 W.C.D. 654 (1974), the employee complained to his supervisors that the heavier work was bothering his back.  The employer was aware the employee had a pre-existing physical impairment.  The employee left for back surgery a short while thereafter.  The court affirmed the commission=s conclusion that these facts Awere sufficient to put a reasonable man on notice to investigate further into the matter.@  In Grapevine v. City of Worthington, 302 N.W.2d 2, 33 W.C.D. 186 (Minn. 1980), the employer was aware the employee, a volunteer fireman, suffered a heart attack on the same day he hurriedly left a fireman=s picnic to respond to a fire alarm.  The court concluded the city had Aactual knowledge of the employee=s injury, in the sense that it had information which would put a reasonable employer on inquiry as to whether the employee=s disability was work-related.@  See also Villarreal v. Albert Lea Electroplating, 33 W.C.D. 165 (W.C.C.A. 1980).  These cases, the employee contends, support her contention that Mills Fleet Farm had actual knowledge of her injury.  We disagree.

 

Actual knowledge within the meaning of Minn. Stat. ' 176.141 Ais knowledge of such information as would put a reasonable man on inquiry . . . .   Mere knowledge of a 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 disability is work-related.A Pojanowski v. Hart, 288 Minn. 77, 81, 178 N.W.2d 913, 916, 25 W.C.D. 206, 209 (1970).  For actual knowledge to exist, an employer must have some information connecting work activities with an injury.  It is not sufficient simply to prove that the employer was aware an employee was ex­periencing pain.  Rinne v. W.C. Griffis Co., 234 Minn. 146, 47 N.W.2d 872, 16 W.C.D. 348 (1951).  Greene, at 157, 27 W.C.D. at 654.

 

Both Issacson and Greene clearly require that an employer have some information connecting the employee=s work activities to the disability before they are required to make further inquiry.  In Issacson, at 867, 40 W.C.D. at 273, the court stated:

 

The record in this case shows that the employer was aware only that the employee was having arm and shoulder problems - - not that it arose from the employee=s work.  A finding of actual knowledge that the condition was related to work on these facts was manifestly contrary to the evidence.

 

Similarly, in this case, Mills Fleet Farm was aware only that the employee was having back problems.  It had no knowledge the employee=s condition was in any way caused by or related to her job duties.  The compensation judge could reasonably conclude that this knowledge was not sufficient to place the employer on inquiry as to whether the employee=s disability was work-related, and that Mills Fleet Farm did not have actual knowledge within the meaning of Minn. Stat. ' 176.141.  Accordingly, we affirm the compensation judge=s conclusion that the employer did not receive notice within 180 days of the employee=s injury.

 

Apportionment - 1980 Injury

 

The compensation judge made the following finding:

 

Based upon a preponderance of the evidence, and if it were to be found that Mills Fleet Farm had statutory notice, Mills Fleet Farm would have full liability for weekly benefits and medical benefits.  Apportionment would not be appropriate.

 

(Finding 57.)  The employee contends this finding is unsupported by substantial evidence.

 

In finding 52, the compensation judge found the employee currently has a 17 percent permanent partial disability due to her low back condition.  In finding 53, the compensation judge found the employee had radicular symptoms after the 1980 injury, and apportioned 7.1 percent of the 17 percent permanent disability to the 1980 injury.  In her memorandum the compensation judge noted Athe employee had a preexisting condition, which possibly involved a disc condition, but the work at Mills Fleet Farm aggravated the preexisting back condition so as to make the Mills Fleet Farm employment a substantial contributing factor.@  The permanency finding and the judge=s comments in the memorandum suggest some causal relationship between the 1980 injury and the employee=s disability after September 15, 1995.  The judge went on to find, however, that apportionment of wage loss and medical benefits Awould not be appropriate.@  (Finding 57.)  The word Aappropriate@ has no specific legal meaning in the context of apportionment.  Perhaps the judge intended to find as a fact the 1980 injury was not a substantial contributing cause of the employee=s wage loss or need for medical care from and after September 9, 1995.  We acknowledge that Dr. Cederberg=s medical opinion might support such a conclusion.  The judge did not, however, specifically adopt Dr. Cederberg=s opinion.  The majority of the judge=s findings are not true findings of fact but rather are recitations of the testimony and documentary evidence.  The compensation judge did not provide any additional findings or explanation for the denial of apportionment of wage loss and medical benefits to the 1980 injury.  Rather than speculate regarding what the compensation judge intended, we remand the case to the compensation judge to clarify the findings.

 

We, accordingly, vacate finding 57 and remand the case to the compensation judge for further consideration.  The compensation judge should make the factual findings that are necessary to resolve the apportionment issue.