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

 

WORKERS= COMPENSATION COURT OF APPEALS

JULY 17, 2003

 

 

HEADNOTES

 

PRACTICE & PROCEDURE - REMAND.  Where it had been undisputed after the earlier proceeding that the employee provided notice of injury to his employer on November 2, 1999, over 30 days after but within 180 days after his May 26, 1999, recognition of his injury=s potential compensability; where the issue on remand was therefore whether the employee had proven a mistake or ignorance of fact or law sufficient to permit notice of injury to be given between 30 and 180 days following recognition of the injury; where, in proposed findings submitted to the judge on remand, both parties acknowledged that the notice period began to run on May 26, 1999, and neither party suggested a change in that date; and where the judge on remand changed that recognition date from May 26, 1999, to March 31, 1999, thereby effectively barring the employee=s claim and eliminating the court=s whole reason for remanding, the judge exceeded the scope of the remand and erred when he changed his previously uncontested finding establishing May 26, 1999, as the commencement date for the statutory notice period.

 

NOTICE OF INJURY - GILLETTE INJURY; STATUTES CONSTRUED - Minn. Stat. ' 176.141.  Where there was no indication in his decision on remand that the judge rejected the employee=s testimony that the employee was unaware that an injured employee is normally required to furnish notice of injury within thirty days of recognizing a work injury, and where there was no evidence that any prejudice to the employer and insurer had resulted from the employee=s failure to give notice prior to expiration of the statutory 180-day notice period, the compensation judge=s conclusion that the employee had failed to reasonably satisfy the Amistake, inadvertence, ignorance of fact or law@ provisions of the notice statute was clearly erroneous and unsupported by substantial evidence, and the matter was reversed and remanded again for further findings on the issue of causation and other non-notice issues of the employee=s entitlement to benefits.

 

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 determination on remand that the employee did not provide the employer with timely notice of his injury.  We reverse the judge=s conclusion as to notice and remand for findings on causation and the benefits at issue.

 

BACKGROUND^[1]

 

Robert Neururer has been a unionized journeyman sheetmetal worker since the 1960s.  Over the years, most of Mr. Neururer=s work has been in commercial construction involving considerable overhead installation of sheetmetal duct work and heating, ventilation, and air conditioning equipment, most of his work assignments issuing from the union hall in Grand Rapids.  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, where he was employed in installation of exterior building sheeting.  On October 28, 1998, the employee saw Dr. Dennis Scherer at the Grand Rapids Clinic regarding pain in his right heel that he said had been growing worse for the past two weeks.  Dr. Scherer=s treatment note on that visit contains no reference to any incident at work or to any symptoms other than heel pain.  The doctor diagnosed tenderness of the heel with tightness of the foot and heel cord, recommended heel pads and certain stretching exercises, and advised the employee to return for recheck if he did not feel better in a couple of weeks.  The employee missed about two weeks of work, and 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, and he has never thereafter returned to work as a sheetmetal worker.

 

On March 31, 1999, about five months after being seen at the Grand Rapids Clinic, 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.  He remained on his union=s on-call list for employment and collected unemployment compensation benefits.  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.  With regard 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, upon being advised of a time limit for giving notice, on November 2, 1999, 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^[2] to his right shoulder culminating on his last day of employment with the employer in November 1998.^[3]  As a consequence of the alleged 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 employee=s claim petition, the employer and insurer denied that the employee had sustained such an injury, asserting also that the employee=s claim was barred by the employee=s failure to provide timely notice of any injury under the statute.

 

The employee=s claim came on for hearing before Compensation Judge Donald C. Erickson on July 18, 2001.  Issues at trial included whether the employee had sustained a work-related Gillette-type injury to his right shoulder, whether the employee had given timely notice of such an injury to his employer pursuant to Minn. Stat. ' 176.141, 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, in addition to being a journeyman sheetmetal worker, he was the sole shareholder in a business enterprise known as RC Enterprises Corp.  RC Enterprises consists of a combination convenience store/gas station and a tavern that sells liquor both on-sale and off-sale.  The employee testified that he usually employs six people in this operation and does have workers= compensation coverage for his employees.  As for himself, the employee testified that he had never received or claimed any workers= compensation benefits in all the years that he had worked as a sheetmetal worker.  He testified also that he became aware of a time limit in which to report an injury when he met with his attorney on October 28, 1999, and that, while he was aware of the need to report an injury, he did not know that he was supposed to Afile@ a workers= compensation claim within thirty days of realizing the work-related nature of an injury.  When he was specifically asked why he did not file a claim for workers= compensation benefits after being told by Dr. Schnell on May 26, 1999, that his condition was work aggravated, the following exchange took place:

 

A         Well, I didn=t really know I had to.  I mean it -- I thought everything=d been done and I had no intentions of filing for workmen=s comp claim.

Q         Had you ever done that before?

A         No.

Q         Did you know that you were supposed to file a workers= compensation claim within 30 days of realizing the work-related nature of an injury?

A         No, but I thought the paperwork had been filled out.  I know you=re supposed to fill one out when you get hurt.

 

In his Findings and Order issued November 1, 2001, the compensation judge concluded that, as of May 26, 1999, the employee had reason to believe that he would be disabled from further work as a sheetmetal worker by his right shoulder condition and, based on Dr. Schnell=s assessment, that his shoulder condition was work-related.^[4]  The judge also found that the employee failed to provide notice to the employer of his Gillette injury within thirty days of that May 26, 1999, date for purposes of Minn. Stat. ' 176.141, and that the employee did not prove that his delay in providing notice was due to any 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 appealed from the compensation judge=s decision to this court.  The employee did not challenge the judge=s factual determination that he had not given notice of his injury to the employer within thirty days of May 26, 1999.  The employee did challenge, however, the factual basis upon which the judge apparently concluded that the employee had failed to prove the existence of mitigating factors as provided for in Minn. Stat. ' 176.141, which permits effective notice of injury to be made in certain circumstances at a date more than thirty days but within 180 days following the injury.^[5]

 

The basis for the judge=s conclusion that the employee failed to prove the existence of mitigating factors was set forth in Finding 17, which read 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.

 

(Emphasis added.)

 

Beyond what was set forth in Finding 17, the judge offered no explanation for rejecting the employee=s claim.  This court agreed with the employee that there was no evidence  that the employee had ever been injured in his career as a sheetmetal worker, and, therefore, no evidence to support a finding that he had previous knowledge or experience in providing notice to his employers of work-related injuries.  Accordingly, in a decision issued August 16, 2002, this court expressly reversed Finding 17 and remanded the case to the compensation judge for additional factual findings relative to the employee=s claim of Amistake or inadvertence.@^[6]

 

On February 10, 2003, a pre-trial conference was held, at which the parties agreed to submit proposed findings for the compensation judge=s consideration.  On March 7, 2003, the judge issued his Findings of Fact and Order on Remand.  In that decision, the judge issued a finding establishing a date on which the employee=s notice period began to run that was different from the uncontested date established in the judge=s previous decisionBMarch 31, 1999, now instead of May 26, 1999; the judge determined that the employee, as a reasonable person, should have recognized already on March 31, 1999, that his shoulder condition was likely to result in a compensable disability.  Consequently, as the employee did not provide notice to the employer of his injury within 180 days of March 31, 1999, the judge denied the employee=s claim.  The employee again appeals.

 

DECISION

 

1.  Commencement Date for Statutory Notice

 

On appeal, the employee contends first that the compensation judge erred when he readdressed a finding that had not been appealed from and was not a subject of this court=s remand.  He contends that, by changing the commencement date of the employee=s statutory notice period from May 26, 1999, to March 31, 1999, the judge essentially nullified the employee=s previous appeal and ignored this court=s instruction to reconsider the applicability of the mitigating factors set forth in the notice statute.  We agree.

 

The entire basis for the employee=s first appeal to this court was the judge=s denial of his claim on grounds that he failed to provide notice to his employer within thirty days of May 26, 1999, the date on which the employee recognized the probable compensable character of his injury.  At trial, the parties litigated the issue of the date on which the employee=s notice period began to run.  The employee contended that he was unaware of the compensable nature of his injury until May 26, 1999.  The employer and insurer contended that the appropriate date was March 31, 1999.  The compensation judge concluded at Finding 11 that the notice period began to run from May 26, 1999.  This finding was not contested by either party on appeal and was consequently not addressed by this court in our previous decision.  Because the basis for the judge=s denial of the employee=s claim was the judge=s conclusion that the employee had failed to prove mistake, inadvertence, or ignorance of fact or law, and because the judge had not identified any credible basis for that conclusion, we remanded the issue to the judge for reconsideration and further findings.  Our remand did not authorize the judge to alter a finding that had not been contested and had been relied upon by this court in rendering its decision.

 

It is undisputed that the employee provided notice to his employer on November 2, 1999, within 180 days but not within thirty days of May 26, 1999.  The issue on remand, therefore, was whether the employee had proven mistake, inadvertence, or ignorance of fact or law sufficient to permit notice of injury to be given between thirty and 180 days following the injury.  In proposed findings submitted to the judge on remand, both parties acknowledged that the notice period began to run on May 26, 1999, and neither party suggested a change in that date.  By changing the notice period commencement date to March 31, 1999, the basis for this court=s remand was entirely altered.  It was  no longer necessary for the judge to even address the issue of Amitigating factors.@  Instead of focusing on legal grounds for allowing notice to be given beyond thirty days after recognition of the injury, which had already been established as having occurred on May 26, 1999, the judge simply concluded that, because the employee did not provide notice of injury within 180 days after an earlier date, March 31, 1999, the employee=s claim was to be denied.

 

Under the circumstances of this case, we conclude that the judge exceeded the scope of the remand and erred when he changed his previously uncontested finding establishing May 26, 1999, as the commencement date for the statutory notice period.  Accordingly, the judge=s determination that the employee=s claim is barred for failure to provide notice within 180 days of March 31, 1999, is reversed.

 

2. Mistake or Ignorance of Fact or Law

 

As noted above, when the compensation judge changed the notice period commencement date to March 31, 1999, it became unnecessary to address the issue that was the basis for the remand, the applicability of the Amitigating factors@ under the notice statute.  Whether the judge nevertheless addressed those factors is difficult to discern.  It is apparent from the judge=s findings on remand and from his memorandum delineating the reasons for his decision, however, that the primary basis for his denial of the employee=s claim was his finding that the employee did not report his injury within 180 days of March 31, 1999.  In effect, the judge denied the employee=s claim based on a failure to give any notice within 180 days, not based on a failure to prove that mistake, inadvertence, or ignorance of law or fact caused a delay in notice up to 180 days.  At Finding 28, the judge ultimately concluded:

 

As the employee, on March 31, 1999, as a reasonable person, should have recognized that his shoulder condition was likely to cause a compensable disability, and as he did not report his injury within 180 days thereafter, he has failed to provide adequate statutory notice to the employer.  As a result he is barred from pursuing his shoulder claims.

 

Despite this 180-day analysis, the judge also issued Finding 19, in which he concluded, AThe employee=s failure to provide notice within 180 days of March 31, 1999 was not due to his own mistake, inadvertence, ignorance of fact or law, or any inability on his part to provide notice to the employer.@

 

The employee=s second contention is that the judge=s ultimate denial of the employee=s claim for failure to provide timely notice is unsupported by substantial evidence, in that the employee has successfully demonstrated the mitigating factors that render his notice timely under the statute, as given within 180 days after May 26, 1999.  In response, the employer and insurer argue that, even if the judge erred in finding March 31, 1999, as the date from which the employee=s notice period began to run, the employee=s claim still fails, since the employee neither provided notice within thirty days of May 26, 1999, nor identified mitigating circumstances authorizing a later notice under the statute.  The employer and insurer argue that, regardless of the apparent basis for his decision, the judge did issue factual findings, consistent with instructions on remand, supportive of a conclusion that the employee failed to prove that his delay in notice was due to mistake, inadvertence, or ignorance of fact or law.  Because, the employer and insurer argue, there is substantial evidence in the record to support these findings, the judge=s ultimate decision must be affirmed.  We conclude that the judge=s finding on the mistake/inadvertence issue at Finding 19 is both clearly erroneous, as to the commencement date of the notice period, and unsupported by substantial evidence.  We further conclude that the employee has reasonably satisfied the Amistake, inadvertence, ignorance of fact or law@ provisions of the notice statute.

 

We acknowledge that certain findings issued by the judge relative to the employee=s operation of RC Enterprises and his purchase of workers= compensation insurance coverage for its employees may arguably support an inference that the employee was familiar with the requirement to promptly report an injury.  We cannot conclude, however, that the referenced findings reasonably support an inference, particularly in view of the employee=s testimony, that the employee failed to prove mistake, inadvertence, or ignorance of fact or law.  At trial, the employee testified that he was not aware of the thirty-day notice provision until advised of it by his attorney on October 28, 1999.  Written notice was then provided to the employer on November 2, 1999.  Nowhere in his decision does the judge reject the employee=s testimony regarding his ignorance of the law prior to October 28, 1999.  We would also note that the findings referenced by the employer and insurer, drawn verbatim from their proposed findings and order, stand without analysis by the judge.

 

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).  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.  Issacson v. Minnetonka, Inc., 411 N.W.2d 865, 867, 40 W.C.D. 270, 274 (Minn. 1987).  As this court has indicated before, the scope of the circumstances under which the notice statute permits an employee to delay notice for up to 180 days is very broad, especially of the circumstance of Amistake or inadvertence,@ and the statute allows an employee wide latitude in showing why notice was not given earlier.  Wood v. Airco Indus. Gases, 45 W.C.D. 342, 345 (W.C.C.A. 1991), summarily aff=d (Minn. Oct. 30, 1991). 

By May 26, 1999, the employee had been on layoff status and had not worked for the employer for approximately seven months.  His unrefuted testimony was that in his thirty years in the sheetmetal trade he had never asserted a workers= compensation claim.  Although the compensation judge did reference the mitigating factors in Finding 19, the evident basis for the judge=s denial of the employee=s claim was his failure to give any notice within 180 days of March 31, 1999.  There is no basis on which to conclude that the intent and purpose of the notice statute would be satisfied by denying this employee=s claim when notice was clearly provided to the employer within 180 days of May 26, 1999.  See Kling v. St. Barnabas Hosp., 291 Minn. 157, 190 N.W.2d 674, 26 W.C.D. 53 (1971).  No prejudice to the employer and insurer has resulted from the employee=s failure to give notice within thirty days of May 26, 1999.  Findings relied upon by the employer and insurer do not reasonably support the compensation judge=s apparent conclusion that the employee has not reasonably satisfied the Amistake, inadvertence, ignorance of fact or law@ provisions of the notice state.  Accordingly, upon review of the total record, we conclude that the decision of compensation judge is clearly erroneous and unsupported by substantial evidence and is therefore reversed.  We again remand this matter to the compensation judge for findings on the issue of causation and other non-notice issues of the employee=s entitlement to benefits.  Because we understand that the original compensation judge is no longer serving with the Office of Administrative Hearings, the judge to whom this remand is assigned may take additional evidence to the extent that he or she finds it necessary to do so to address these issues.