KAREN J. WHITLOCK, Employee, v. MINNEAPOLIS COLLEGE OF ART & DESIGN and HARTFORD INS. GROUP, Employer-Insurer/Appellants.

 

WORKERS= COMPENSATION COURT OF APPEALS

JANUARY 22, 2003

 

HEADNOTES

 

PRACTICE & PROCEDURE - REMAND.  Where the compensation judge chose a Gillette injury date not proposed by either party, remand was necessary to allow the parties to submit evidence as to a statute of limitations defense raised by the judge=s choice of injury date.

 

Affirmed and remanded.

 

Determined by Wilson, J., Rykken, J., and Pederson, J.

Compensation Judge:  John Ellefson.

 

OPINION

 

DEBRA A. WILSON, Judge

 

The employer and insurer appeal from the compensation judge=s finding that a Gillette injury^[1] occurred on a date not pled in the claim petition.  We affirm the judge=s finding and remand the case for further findings on the issue of the statute of limitations.

 

BACKGROUND

 

The employee sustained an admitted injury, in the form of bilateral carpal tunnel syndrome, culminating on October 5, 1993, while she was working for Minneapolis College of Arts & Design [the employer].  The employee had bilateral upper extremity symptoms thereafter, and, on September 2, 1994, reported, for the first time, Anumbness into the tips of her fingers, especially the first and second digits.@^[2]  The employee was eventually diagnosed with Acubital tunnel syndrome - compression of the ulnar nerve at the elbow,@ and ulnar nerve surgery was recommended.

 

The employee filed a claim petition on May 11, 2001, seeking out-of-pocket prescription expenses and approval for the recommended surgery.  The date of injury listed on that claim petition was A10-5-93 Gillette.@  The employer and insurer denied liability for the cubital tunnel syndrome.

 

The matter proceeded to hearing on August 22, 2002, before a compensation judge of the Office of Administrative Hearings.  At hearing, the employee contended that all left upper extremity problems culminated in disability on October 5, 1993.  The employer and insurer contended that the employee=s injury culminated on April 22, 1992, prior to their workers= compensation coverage. 

 

In findings filed on August 28, 2002, the compensation judge found that the employee=s cubital tunnel syndrome injury culminated on September 2, 1994.  The employer and insurer 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

 

The employee identified a date of injury of October 5, 1993, in the claim petition and at the time of trial, and the employer and insurer identified the date of injury as April 22, 1992.  The compensation judge, however, found that the employee had sustained a Gillette injury culminating on September 2, 1994.  On appeal, the employer and insurer assert that the compensation judge erred in finding a date of injury that was different than the two proposed by the parties and that, by unfairly expanding the issues, he effectively prevented the employer and insurer from raising additional defenses to the employee=s claims, such as the statute of limitations.  We are not persuaded that the judge erred in finding a date of injury of September 2, 1994.^[3]

 

In opening statements at trial, counsel for the employer and insurer stated to the compensation judge, Awe have two issues for you to decide today, the culmination of the Gillette if you choose to do so, and the other issue is the nature and extent of her injuries and when did it culminate.@  Later in opening statements, defense counsel stated,  A[t]he culmination of a Gillette injury is a legal issue for the judge.@  However, a finding as to the timing of a Gillette injury is one of fact, which we are extremely hesitant to overturn on appeal.  Pettis v. Metal Matic, slip op. (W.C.C.A. January 18, 2000).  As the issue was phrased to him, it was not unreasonable for the judge to pick a date other than the two suggested by the parties.^[4]

 

Secondly, the employer and insurer contend that the judge=s expansion of the issues denied them due process under the Minnesota and United States Constitutions.  This court lacks jurisdiction to determine constitutional questions.  Irwin v. Surdyk=s Liquor, 599 N.W.2d 132, 59 W.C.D. 319 (Minn. 1999).  However, basic fairness requires notice and reasonable opportunity to be heard before decisions as to benefit entitlement may be made.  Kulenkamp v. Timesavers, Inc., 420 N.W.2d 891, 894, 40 W.C.D. 869, 872 (Minn. 1990).  In the instant case, where the employer and insurer alleged an alternative date for the Gillette injury for the first time at hearing,^[5] we cannot conclude that the compensation judge abused his discretion by choosing a date other than that alleged by the employee.  At the same time, however, we are cognizant that other issues were raised by the judge=s selection of the September 2, 1994, injury date that were not addressed in his decision, because those issues were not raised at hearing.  Specifically, the employer and insurer contend that, because the employee filed his claim petition more than six years after the date of injury, the statute of limitations has run.  The employer and insurer have therefore asked this court to apply the six-year statute of limitations and deny the employee=s claim.  In that the employee did not address the statute of limitations in her brief, we do not know her position on this issue. 

 

There appears to be no dispute that the employer and insurer were on risk for an injury date of September 2, 1994.  However, because the specific injury date of September 2, 1994, was not pled at trial, the employer and insurer did not have the opportunity to raise a statute of limitations defense to that date of injury.  To affirm the judge=s award of benefits without a determination of the statute of limitations defense would be fundamentally unfair to the employer and insurer under the circumstances, but resolution of the statute of limitations issue calls for a factual analysis beyond this court=s review function. Accordingly, we remand this case to the compensation judge for determination as to whether the employee=s claim is barred by the statute of limitations.  The judge should allow the parties to submit whatever evidence is necessary to fairly resolve this issue.