Busch v. Wal-Mart

CARRIE BUSCH, Employee/Appellant, v. WAL-MART, SELF-INSURED/CLAIMS MGMT., Employer, and THERAPY PARTNERS, ORTHOPAEDIC & FRACTURE CLINIC, MANKATO CLINIC, WAL-MART HEALTH & WELFARE FUND, MANKATO CHIROPRACTIC CTR., and MAYO CLINIC, Intervenors.

NOTICE OF INJURY - SUBSTANTIAL EVIDENCE. The evidence adequately supported the compensation judge=s decision that the employee, as a reasonable person, had sufficient information as to the nature, seriousness, and probable compensability of her work injury to trigger commencement of the notice period as of the date of injury, making her notice of injury to the employer more than 180 days later untimely.

Attorneys: Philip R. Reitan, Reitan Law Office, Mankato, MN, for the Appellant. Andrew Willaert, Gislason & Hunter, Mankato, MN, for the Respondents.

The employee appeals from the compensation judge=s decision that the employee failed to give timely notice of injury as specified by Minn. Stat. ' 176.141. We affirm.

The employee began working for Wal-Mart Stores, Inc. [the employer], in November of 2000. She was employed as a manager in ADepartment 82,@ the store location for candy and batteries, among other products, and her job required a substantial amount of bending, twisting, lifting, and carrying in connection with stocking store shelves. ABreak packs@ of batteries might weigh 40 to 50 pounds, and the employee would have to lift these break pack boxes out of bins in the storage room and then place the boxes in a shopping cart to convey to the appropriate shelves.

On October 12, 2001, the employee left work early to seek chiropractic treatment, from Dr. T.L. Marshall, for low back and leg symptoms. The employee explained at hearing that, for several weeks prior to that date, she had experienced intermittent low back symptoms, and her left leg had occasionally given out. On October 12, a day on which she later recalled having lifted break packs of batteries at work, her left leg gave out twice and her low back pain became so bad she Acouldn=t take it anymore.@

Dr. Marshall=s October 12, 2001, treatment note indicates that the employee=s left low back was sore, that it Ahad been going on for a long time,@ and that the employee had also been experiencing occasional radicular symptoms. Dr. Marshall administered adjustments and issued a slip indicating that the employee should be restricted from twisting and lifting more than 10 pounds until October 15, 2001, in order to avoid aggravating her back. The employee testified that she tried to observe these limitations at work over the next few days.

The employee saw Dr. Marshall on several more occasions in the following weeks. A November 9, 2001, treatment note indicates that the employee=s back was Apretty good@ but that her left leg was still giving out, and Dr. Marshall therefore referred the employee to her family physician for further care, including potential physical therapy for strengthening.

The employee was seen by her family physician, Dr. Caroline Baerg, on November 13, 2001, for Aevaluation of ongoing left gluteal pain.@ Dr. Baerg diagnosed Aprobable gluteal muscle spasm@ and sent the employee to physical therapy for Adefinitive treatment and diagnosis.@ The physical therapist initially suspected pyriformis syndrome, but physical therapy did not help, and Dr. Baerg therefore referred the employee for an orthopedic evaluation.

The employee was seen in orthopedic consultation by Dr. R. Wynn Kearney, Jr., on December 14, 2001. Dr. Kearney noted that Dr. Baerg had been treating the employee for Aa presumption of a back condition,@ but, after x-rays and examination, Dr. Kearney=s assessment was Aleft hip greater trochanteric bursitis, possible contribution of low back degenerative disc disease (doubt).@ On December 20, 2001, noting that the employee had not Adone well@ with physical therapy, Dr. Kearney administered an injection to the employee=s left hip in an attempt to treat continuing left hip and buttock symptoms.

An MRI of the employee=s left hip performed on January 15, 2002, disclosed findings consistent with mild bursitis and osteophytic spurring as well as a minimal cyst on the right femoral head. A few days later, in treatment notes from a January 18, 2002, visit, another physician, Dr. Michael Kearney, noted that the steroid injection had not relieved the employee=s symptoms, which included Asome back pain,@ and he recommended a trial of anti-inflammatories. Dr. Kearney also observed that, since the employee=s pain was in the buttock, Ait is conceivable that [the employee] has a pinched nerve in her back producing buttock and sciatic notch tenderness and discomfort and episodes down her leg.@

On April 2, 2002, the employee returned to see Dr. Wynn Kearney, who noted that the employee=s symptoms had not improved with medication. Dr. Kearney=s office record also refers to the fact that the employee worked for the employer, that she was Aon her feet a lot,@ and that she experienced an accentuation of left buttock and lateral left thigh pain when walking and standing. Dr. Kearney ordered a lumbar MRI scan, which was performed on April 6, 2002, and disclosed an Aextruded disc herniation@ causing Amoderate severe central stenosis at L4-5" with apparent impingement on the transversing nerves. The employee later testified that her symptoms had been in the Alower back,@ into the buttock, during her treatment by Dr. Kearney.

At some point in April of 2002, following the MRI scan, Dr. Kearney apparently told the employee that he thought her low back condition was related to her work activities for the employer. Not long thereafter, on April 24, 2002, the employee completed both a First Report of Injury and an AAssociate Statement@ for the employer. Both documents designated October 12, 2001, as the date of injury. The employee testified that another manager at the employer had suggested that the employee choose the first date of treatment as the date of injury, leading the employee to call Dr. Marshall=s office to ascertain that date. The First Report of Injury describes the injury as having occurred while lifting Abreak pack boxes about 30-40 pounds.@ In the Associate Statement, the employee described the injury the same way, and, in response to a question as to why the injury had not been reported immediately, the employee wrote: Adid not think that it was a serious matter. Tried chiropractor first, but situation did not get better.@

Following the lumbar MRI scan, the employee underwent conservative care for a time, but her symptoms did not improve, and, on December 18, 2002, she underwent a micro-laminectomy discectomy at L4-5 on the left. She subsequently returned to modified work with the employer.

The matter came on for hearing before a compensation judge on September 26, 2003, for resolution of the employee=s claim for various benefits due to an alleged specific injury and/or alleged Gillette-type^[1] injury occurring on October 12, 2001. Referring to essentially uncontroverted medical evidence on the issue of causation, the employer stipulated that the employee had sustained a work injury on the date alleged, either specific or Gillette. However, the employer nevertheless denied liability for the claimed benefits, contending that the employee had not given timely notice of injury as required by statute.

In a decision issued on November 25, 2003, the compensation judge concluded that the employee had sustained both a Gillette and a specific injury to her low back on October 12, 2001, but that her claim for benefits was barred because she had failed to give the employer timely notice. The employee appeals.

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.

Pursuant to Minn. Stat. ' 176.141, an employee is generally not entitled to benefits for a work-related injury unless the employer has actual knowledge or the employee provides notice of the injury Awithin 180 days after the occurrence of the injury.@^[2] However, as the supreme court has explained, the time for giving notice does not begin to run until the employee, as a reasonable person, should recognize the nature, seriousness, and probable compensable character of the injury. Issacson v. Minnetonka, Inc., 411 N.W.2d 865, 40 W.C.D. 270 (Minn. 1987). The date on which an employee has obtained knowledge sufficient to trigger the duty to give notice is generally a fact question. Barcel v. Barrel Finish, 304 Minn. 536, 232 N.W.2d 13, 28 W.C.D. 4 (1975).

In the present case, it is undisputed that the employee did not give the employer notice until April 24, 2002, more than 180 days after her October 12, 2001, low back injuries, and the compensation judge concluded that October 12, 2001, was the date on which the employee Acould have reasonably recognized the seriousness and probable compensability of the injury.@ The employee argues, however, that she did not and could not reasonably have connected her injury to her work activities until Dr. Kearney informed her of his causation opinion in April of 2002, following the lumbar MRI scan. As such, the employee argues, the notice provided to the employer on April 24, 2002, satisfied the statutory notice provision, as construed in case law.^[3] However, after careful review of the record, we are compelled, by our standard of review, to affirm the compensation judge=s decision.

The next issue is whether Ms. Busch gave timely notice of the injury to Wal-Mart. The employee reported that her symptoms on October 12, 2001, were that her pain was so bad that she could not take it anymore. Ms. Busch described the onset of her symptoms on October 12, 2001, in the same or similar words to more than one treating or examining doctor. The employee=s position that this was a trivial injury and that she did not recognize the seriousness and probable compensability of the injury is inconsistent with her precise description of the significant change in her condition on that date. The employee had a marked increase in symptoms after stocking the battery break-packs such that she asked a manager for permission to leave work early to see a doctor. . . . Ms. Busch reported to Dr. Marshall that she had ongoing low back pain that had significantly increased with her work activities on October 12, 2001.”^[4]› Whether the doctor diagnosed the condition as related to her hip or back, the employee has consistently said that her pain increased after she worked stocking at Wal-Mart to the point that she could not stand it any longer. She pointed to this date in her subsequent histories to treating doctors as the date of the onset of her symptoms. Ms. Busch continued to treat with her chiropractor, then her family doctor and orthopedist in succession after October 12, 2001. The employee saw Dr. Marshall five times from October 12 through November 9, 2001. Dr. Marshall referred the employee to her family doctor, Dr. Baerg. Dr. Baerg tried physical therapy then referred the employee to an orthopedist. The employee should have recognized that the events of October 12, 2001, were sufficiently serious that she should have reported a work injury to the employer.

The employee treated with Dr. Kearney regularly from December 14, 2001, through April 6, 2002, when she had an MRI. The employee contends that she did not appreciate the seriousness of her condition until the MRI scan. The employee=s position is not persuasive. Ms. Busch commented on her work activities at the April 2, 2002, appointment, noting that she worked on her feet and had increased symptoms with walking and standing. The employee could have reasonably concluded that her condition was causally related to her work activities on October 12, 2001. The employee failed to notify the employer when she could have reasonably recognized the seriousness and probable compensability of the injury or disease on October 12, 2001.

Based on the employee=s repeated testimony that her back and leg symptoms increased substantially while lifting 40- to 50-pound boxes at work on October 12, 2001, as well as the employee=s testimony that back and leg symptoms had occurred in the weeks prior to that date while doing the same kind of work,^[5] the record is minimally adequate to support the conclusion that the employee understood, or should have understood, that her condition was causally related to her work activities as of October 12, 2001, the date of injury. In this regard it is noteworthy that, in responding to the question, in the Associate Statement of April 24, 2002, regarding why the injury had not been reported immediately, the employee did not say that she did not recognize her condition as work-related; rather the employee said that she thought that the injury would resolve with some chiropractic treatment. Moreover, when describing events on October 12, 2001, the employee testified not only that her low back worsened on that date but that the stabbing sensation that caused her to seek treatment occurred specifically while she was lifting at work, not simply randomly throughout her work day. Finally, given the employee=s testimony as to the seriousness of her symptoms on October 12, 2001, the fact that she left work early that day to seek chiropractic treatment, and her testimony that her low back symptoms never really improved after October 12, 2001, it was not unreasonable for the compensation judge to conclude that the so-called trivial injury rule did not apply to extend the notice period.

This is an unfortunate case. The employee reported the injury less than two weeks after the expiration of the 180-day limit, and we see no indication that the employer was prejudiced by the lateness of the employee=s report. Moreover, another factfinder might easily have concluded, on this same record, that the employee did not reasonably understand, at least initially, the seriousness and probable compensability of her condition, making the April 24, 2002, notice in fact timely. This is especially true given confusion in diagnosis and the fact that no medical record prior to April of 2002, referred in any detail to the employee=s work, much less to causation of the employee=s condition.^[6] However, the wisdom of the 180-day notice period is a matter for the legislature, not this court, to consider, and the statute makes no provision for extending the notice period beyond 180 days merely because no prejudice has been shown. It is similarly not our function to substitute our judgment for that of the compensation judge on what is a peculiarly factual issue. Therefore, we have no option but to affirm the compensation judge=s decision denying benefits based on the employee=s failure to provide timely notice of injury pursuant to Minn. Stat. ' 176.141.

^[1] See Gillette v. Harold, Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960).

^[2] Shorter time limits may apply in some circumstances, see Minn. Stat. ' 176.141, but this case was litigated and decided under the 180-day limit.

^[3] In her brief on appeal, the employee appeared to contend, in the alternative, that the employer had actual knowledge of the injury with the 180-day period. However, the employee did not raise this issue before the compensation judge, and, at oral argument before this court, counsel for the employee clarified that her position was merely that the employer had the same knowledge all along as the employee herself had, and that neither the employee nor the employer had any good reason to tie the employee=s low back condition to the employee=s work until April of 2002. As such, counsel explained, the employee was not contending that the employer had actual knowledge prior to April 24, 2002.

^[4] Actually, we could find no evidence that the employee reported to Dr. Marshall that her symptoms had increased with her work activities. However, the employee consistently testified that her symptoms had increased substantially while lifting the break packs of batteries on October 12, 2001. In other works, it is inferrable that she made the connection then, whether or not she reported it to Dr. Marshall.

^[5] There is an argument that the judge=s findings and memorandum address only the issue of notice as to the specific injury, not the Gillette injury that also occurred on October 12, 2001. However, the issue is really the same - - that is, the notice period began to run when the employee should reasonably have connected her condition to her work activities. The fact that the employee may not have understood that her work activities over time contributed to her condition is essentially irrelevant. Nelson v. Johnson Builders & Developers, 61 W.C.D. 714 (W.C.C.A. 2001); Flanagan v. Bellboy Corp., slip. op. (W.C.C.A. Apr. 27, 1992). In addition, it is true that, for months, doctors focused on the employee=s hip, rather than her back, as the source of her symptoms. However, that fact does not necessaily change the analysis. While the employee may not have known precisely what was wrong with her, she nevertheless knew that the symptoms had occurred while she was performing heavy lifting at work. Moreover, whatever the symptoms recorded in the employee=s medical records, the employee testified that it was her low back that had been bothering her all along.

^[6] We are aware that a medical opinion is not necessary to commence the running of the period for giving notice. See Jones v. Thermo King, 461 N.W.2d 915, 43 W.C.D. 458 (Minn. 1990). However, the fact that the employee apparently did not report her work activities to her doctors for some time might support the conclusion that the employee herself did not in fact understand that her condition might be work-related.