ROBERT NEURURER, Employee/Appellant, v. JAMAR CO. and ST. PAUL COS., Employer-Insurer, and DULUTH BLDG. TRADES HEALTH & WELFARE FUND, Intervenor/Cross-Appellant, and MN DEP=T OF ECONOMIC SEC./RI and ITASCA MEDICAL CTR., Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

AUGUST 16, 2002

 

HEADNOTES

 

NOTICE OF INJURY - GILLETTE INJURY; STATUTES CONSTRUED - MINN. STAT. § 176.141.  The scope of the circumstances under which Minn. Stat. ' 176.141 permits an employee to delay notice for up to one hundred eighty days is very broad and allows an employee wide latitude in showing why notice was not given earlier.  Where there was simply no evidence to support the sole factual premise set forth by the judge for denying benefits on a notice basis, the matter was reversed and remanded to the compensation judge for additional factual findings on the notice issue.

 

Reversed and remanded.

 

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

Compensation Judge:  Donald C. Erickson.

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

The employee appeals from the compensation judge=s denial of benefits on grounds that the employee did not provide the employer with timely notice of his Gillette-type^[1] injury.  Intervenor Duluth Building Trades Health and Welfare Fund cross-appeals from the judge=s failure to issue a finding that its intervention interest has been established subject to the employee=s proof of a compensable claim.  We reverse and remand the matter to the judge for reconsideration and additional findings consistent with this opinion.

 

BACKGROUND

 

In about 1962, Ronald Neururer enrolled in a program at Dunwoody Institute in Minneapolis, to become a sheet metal worker.  While attending school, Mr. Neururer entered into his union=s apprenticeship program, and he ultimately became a journeyman sheet metal worker.  Over the years, most of Mr. Neururer=s work was in commercial construction and involved considerable overhead installation of sheet metal duct work, together with heating, ventilation, and air conditioning equipment.  Mr. Neururer received his work assignments out of the union hall in Grand Rapids, and he remained in the trade until November 1998, when he was laid off for the season.  He has not returned to work as a sheet metal worker since that time.

 

In September 1998, Mr. Neururer [the employee] was assigned to work for the Jamar Company [the employer] at a project at the Blandin Paper Company in Grand Rapids.  The employee=s job on the project was installing exterior building sheeting, and he alleges that he sustained an injury to his right foot and right shoulder in the course of it in early October 1998.  The employee testified that he notified his supervisor of the incident and thereafter missed about two weeks from work.  When he returned to the job, the project was evidently winding down, and the employee was placed on layoff status in early November.  He did not pursue a workers= compensation claim at that time.

 

The employee first sought medical attention for his alleged work injury at the Grand Rapids Clinic on October 28, 1998, where he complained of right heel pain that had been growing worse for the past two weeks.  The doctor=s office note for that visit contains no reference to an incident at work or to any right shoulder complaints.  The employee was advised to return for recheck if he did not feel better in a couple of weeks. 

 

About five months later, on March 31, 1999, the employee obtained an evaluation of his right shoulder by orthopedist Dr. William Schnell.  The employee indicated to Dr. Schnell that he did not recall ever injuring his shoulder but that he had had pain, cracking, snapping, and diminished range of motion of the shoulder for at least three years and had more recently been having trouble sleeping at night.  On examination, Dr. Schnell found significantly restricted range of motion, which he associated with significant crepitus.  X-rays taken of the employee=s right shoulder Ademonstrat[ed] end stage glenohumeral articular degenerative joint disease.@  The doctor advised the employee to Acontinue with a conservative course, as no doubt he is going to require a total shoulder replacement for relief of symptoms.@  At that time, the employee evidently planned on continuing to work and to undergo the shoulder surgery when he retired.  On May 26, 1999, however, the employee returned to Dr. Schnell to discuss total shoulder replacement.  The doctor noted that the employee=s condition on examination was unchanged, with very little glenohumeral range of motion.  His diagnosis remained end stage degenerative joint disease of the right shoulder.  As to causation, Dr. Schnell stated, AI believe his condition is work aggravated and not necessarily work caused exclusively.@

 

The employee sought a second medical opinion concerning his right shoulder from orthopedist Dr. Troy Berg.  On August 13, 1999, Dr. Berg obtained a history from the employee of Aa crunching sensation@ in his right shoulder for one and one-half years.  The employee reported an incident at work the preceding November after which he had noted a marked increase in his right shoulder pain.  He also reported that both shoulders had been stiff for many years and that he had had difficulty with strenuous overhead activity.  Dr. Berg concurred with Dr. Schnell=s diagnosis and opined that if the employee=s shoulder pain worsened he would be a candidate for a total shoulder arthroplasty.

 

The employee retained counsel on October 28, 1999, and on November 2, 1999, he provided the employer with written notice of a right shoulder injury, which Amay be due to repetitive trauma as a result of many years of sheet metal working.@  On December 16, 1999, the employee filed a claim petition, alleging a Gillette-type injury to his right shoulder culminating on his last day of employment with the employer in November 1998.^[2]  As a consequence of the injury, the employee claimed entitlement to temporary total or permanent total disability benefits continuing from November 8, 1998, permanent partial disability benefits, and medical benefits.  In their answer to the claim petition, the employer and insurer denied that the employee sustained such an injury, asserting also that the employee=s claim was barred by the employee=s failure to provide timely statutory notice of any injury.

 

The employee was examined at the request of the employer and insurer on March 24, 2000, by Dr. James Schaffhausen, M.D.  Dr. Schaffhausen diagnosed bilateral glenohumeral osteoarthritis, right greater than left.  He opined that the employee would have developed this condition eventually regardless of his occupation.  He stated also, however, that the employee=s occupation, with repetitive use of the arms over his head, Acould, in fact, accelerate the osteoarthritic changes that are currently present.@  Dr. Schaffhausen attributed 60% of the employee=s condition to the natural degenerative process occurring in the employee=s  shoulder and 40% to the repetitive use of his arms overhead at work.  He agreed that a right total shoulder arthroplasty was appropriate care and treatment for the employee=s condition.

 

The employee=s claim came on for hearing before a compensation judge on July 18, 2001.  Issues at trial included whether the employee had sustained a work-related Gillette-type injury to his shoulder, whether the employee gave timely notice of such an injury to his employer, and the extent of the employee=s disability.  Also at issue were the intervention claims of Duluth Building Trades Health and Welfare Fund [the Health and Welfare Fund], the Department of Economic Security, and Itasca Medical Center.

 

At trial, the employee testified that he had never received workers= compensation benefits in the years he worked as a sheet metal worker.  He testified also that, while he was aware of the need to report an injury, he had thought that his responsibility was over once he had reported his injury in October 1998.  He stated that he did not know that he had to do anything more once Dr. Schnell had mentioned, in May 1999, that his condition was work-aggravated.

 

In his Findings and Order issued November 1, 2001, the compensation judge concluded that in light of the medical treatment record in October 1998 and the employee=s history to Dr. Schnell in March 1999 of having sustained no previous injury to his right shoulder, the employee did not provide notice of a shoulder injury to the employer in October or November 1998.  He also concluded that, as of May 26, 1999, the employee had reason to believe that he would be disabled from further work as a sheet metal worker by his right shoulder condition and, based on Dr. Schnell=s assessment, that his shoulder condition was work-related.  The judge found that the employee did not provide notice to the employer of his Gillette injury within thirty days of that May 26, 1999, date and that the employee also failed to prove mistake, inadvertence, ignorance of fact or law, or inability to give notice within those thirty days.  Consequently, the judge denied the employee=s claim for benefits and the claims of the intervenors.  The employee and the Health and Welfare Fund appeal.

 

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

 

Essential to proof of a claim under the workers= compensation act is a showing 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).  Generally, in cases involving a latent injury, such as a Gillette injury, the notice period under Minn. Stat. ' 176.141 does not begin to run until the employee, as a reasonable person, recognizes that the injury has resulted in, or is likely to cause, a compensable disability.  Id. at 867, 40 W.C.D. at 274.  It has long been held that the purpose of the statutory notice requirement is Ato 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.@  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).

 

In denying benefits to the employee, the compensation judge determined that the employee had not given notice of his injury to the employer within thirty days of May 26, 1999, the date on which it was reasonably apparent that the employee=s right shoulder condition was likely to cause a compensable disability.  The judge further found that the employee had failed to prove the applicability of the mitigating factors listed in Minn. Stat. ' 176.141, which permits notice of injury at a date greater than thirty days but less than one hundred eighty days following the injury.^[3]  The basis for the judge=s conclusion that the employee failed to prove the applicability of the mitigating factors is set forth in Finding 17, which reads as follows:

 

As the employee had previous knowledge and experience in providing notice to his employers of work-related injuries, the failure to give notice within 30 days was not due to the employee=s mistake, inadvertence, ignorance of fact or law or inability.  Nor is it due to any fraud, misrepresentation, or deceit of the employer or insurer.

 

On appeal, the employee challenges the evidentiary basis for the judge=s rejection of his Amitigating factor@ claim under Minn. Stat. ' 176.141.  The compensation judge offers no explanation for rejecting the employee=s mitigating factor claim beyond what is set forth in Finding 17.  The employee argues that the judge issued no findings supportive of Finding 17, contending that the only evidence bearing on the judge=s assertion is the employee=s unopposed testimony that, other than the claim here at issue, the employee never reported a workers= compensation claim to the employer or to any other employer in the trade.  Contending that the judge=s finding lacks evidentiary support, the employee requests a remand for additional findings on the issue of notice.  We agree that a remand is in order.

 

In Wood v. Airco Indus. Gases, 45 W.C.D. 342 (W.C.C.A. 1991), summarily aff=d (Minn. Oct. 30, 1991), this court observed that the scope of the circumstances under which the notice statute permits an employee to delay notice for up to one hundred eighty days is very broad, especially the circumstance of Amistake or inadvertence,@ and that the statute allows an employee wide latitude in showing why notice was not given earlier.  In the case before us, we conclude the sole factual premise set forth by the judge for denying benefits on a notice basis is clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.  Even if it were a sufficient basis by itself for denial of the benefits at issueBand we do not say that it isBwe conclude that there is simply no evidence indicating that the employee had previous knowledge and experience in providing notice to his employers of work-related injuries.  Accordingly, we reverse Findings 17, 18, and 19 and Order 1 of the Findings and Order and remand the matter to the compensation judge for additional factual findings on the notice issue.  The judge shall base his findings on the existing record, but he may receive additional argument from the parties at his discretion.  Should the judge determine that the employee provided timely notice of his injury, additional findings will be necessary to resolve the employee=s claims for benefits and the specific interests of the intervenors.^[4]