VELMA METTERS, Employee/Appellant, v. NORTHWEST AIRLINES and LIBERTY MUT. INS. CO., Employer-Insurer, and MN DEP'T OF HUMAN SERVS., MEDICA HEALTH PLANS (INGENIX), METROPOLITAN HAND SURGERY ASSOCS., P.A., and NEUROLOGICAL ASSOCS. OF ST. PAUL, Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

AUGUST 17, 2005

 

No. WC05-150

 

HEADNOTES

 

NOTICE OF INJURY - GILLETTE INJURY.  Substantial evidence supports the finding that the employee had sufficient knowledge of the probable compensable character of her personal injury more than 180 days prior to the notice given in this case, and the finding that the employee failed to provide timely notice of injury to employer is affirmed.

 

Affirmed.

 

Determined by: Stofferahn, J., Pederson, J., and Johnson, C.J.

Compensation Judge: Rolf G. Hagen

 

Attorneys: David M. Bialke, Fridley, MN, for the Appellant.  Robin D. Simpson, Aafedt, Forde, Gray, Monson & Hager, Minneapolis, MN, for the Respondents.

 

OPINION

 

DAVID A. STOFFERAHN, Judge

 

The employee appeals from the compensation judge=s determination that she failed to provide timely notice of her injury as required by Minn. Stat.'176.141, and from the consequential denial of her workers= compensation claim.  We affirm.

 

BACKGROUND

 

Velma Metters began working for the employer, Northwest Airlines, on August 21, 2000. She worked at a variety of jobs which  required extensive typing at a computer keyboard. In 2001 the employee began experiencing numbness and tingling in her right hand and fingers, particularly in the index finger and thumb.  These symptoms would increase whenever she was typing; at other times they diminished, although the numbness and tingling never went away entirely.  She also experienced pain in her right hand and arm, but only while typing.  Between typing tasks, she would sometimes shake or massage her right hand, as that helped alleviate her symptoms.  She testified that she associated her right hand symptoms during this period with her typing duties.  However, as she was able to do her work, she never told her employer about her symptoms.

 

In March 2003, the employee went on extended medical leave from her job for reasons unrelated to the issues in this case.  That summer, the employee was placed in a temporary layoff status.  While she was off work, her right hand symptoms at first improved significantly, although they did not go away entirely.

 

On July 4, 2003, the employee slipped on some water and fell in a grocery store.  The next day, she went to the emergency room at Regions Hospital, where she was diagnosed with a neck strain and a low back strain.  She was given pain medication and instructed to follow up with her primary care physician, Dr. Deborah Swendroski.  The employee saw Dr. Swendroski on July 8, 2003.  Dr. Swendroski was concerned about the possibility of cervical disc involvement.  She recommended a cervical MRI and referred the employee for a neurological evaluation.  On August 1, 2003, the employee was involved in a non-work motor vehicle accident and sustained additional injury to her upper back and neck.

 

The employee was seen by a nurse, Penny Hodges-Goetz, at Neurosurgery Associates on referral from Dr. Swendroski on September 3, 2003.  The employee reported that she had experienced low back pain and radicular pain into her right leg, along with weakness of the right leg and numbness and tingling in the right thigh and toes since her slip and fall.  The employee also told the nurse that she had been experiencing neck pain with radicular pain down the arm into the fingers, and numbness and tingling in her right hand.  The cervical MRI scan, which had been performed on July 10, 2003, was read as unremarkable for cervical impingement and Ms. Hodges-Goetz noted that the employee=s cervical symptoms were not consistent with any dermatomal pattern.  She thought the employee=s symptoms were suggestive of carpal tunnel syndrome and recommended that the employee undergo an EMG of her upper right extremity.

 

On September 19, 2003, the employee was seen by Dr. Richard T. Foreman at Neurological Associates of St. Paul for further evaluation and EMG testing.  The EMG showed an absent right median sensory response.  Dr. Foreman found nothing that would suggest that the employee=s right upper extremity symptoms were related to a cervical problem.  He diagnosed a probable right carpal tunnel syndrome.  Although the discussion is not recorded in his notes, the employee testified that when Dr. Foreman told her she had carpal tunnel syndrome, she asked him

 

. . . how can I have carpal tunnel from a slip and fall or a car accident?  He said no, what type of work do you do?  And I said I used to work at Northwest Airlines and I=m laid off right now but I was in HR working on a computer.  And he said well, that=s where the carpal tunnel it=s [sic] from . . .

 

T. 61.

 

The employee returned to Neurosurgery Associates on October 20, 2003, where she was seen by Dr. Keith G. Davies.  Dr. Davies noted that the EMG had evidenced a prominent carpal tunnel syndrome in the right upper limb.  On examination, there was marked wasting and weakness of the right abductor pollicis brevis and sensation was reduced in a typical median distribution in the right hand.  Tinel=s and Phalen=s signs were both positive.  Dr. Davies diagnosed a significant right carpal tunnel syndrome and recommended that the employee undergo surgery.

 

The employee testified that she was very reluctant to undergo surgery at that time and wanted to think it over.  She stated that she hoped that the symptoms would resolve without surgery and that she would be able to return to her typing duties when called back to work following the layoff.  However, on January 21, 2004, the employee was seen by a nurse practitioner at Neurosurgery Associates and reported that her right arm numbness and tingling had worsened to the point where she could no longer use the hand.  She now wanted to undergo carpal tunnel release surgery.

 

On April 14, 2004, the employee saw Dr. Paul Donahue at Metropolitan Hand Surgery Associates for another opinion.  On exam, Dr. Donahue found obvious thenar atrophy in the right hand along with positive Tinel=s and Phalen=s signs.  Dr. Donahue diagnosed a severe right carpal tunnel syndrome and recommended surgery.  His chart note did not reference causation.

 

The employee retained a workers= compensation attorney on April 15, 2004.  On April 19, 2004, she served a claim petition on the employer and insurer alleging a Gillette injury culminating on September 19, 2003.  It is undisputed that this is the first notice that the employer or insurer ever received of the employee=s work injury.

 

The employee eventually underwent carpal tunnel surgery, performed by Dr. Donahue, on June 17, 2004.  She has never returned to work for the employer.

 

On December 10, 2004, a hearing was held before Compensation Judge Rolf Hagen on the employee=s claim petition.  The employer and insurer asserted various defenses, including that of lack of notice of injury as required by Minn. Stat. ' 176.141.  The compensation judge found that the employee had sustained a Gillette injury, in the nature of carpal tunnel syndrome, culminating on or about September 19, 2003.  The judge also found that the employee knew or reasonably could have recognized the seriousness, work-related character and probable compensability of her condition by that date, but failed to notify the employer of the injury within 180 days.  Based on his determination, the compensation judge denied the employee=s claim.  The employee appeals.

 

DECISION

 

The only issue on appeal is whether substantial evidence supports the compensation judge=s denial of the employee=s workers= compensation claim for failure to provide notice of injury pursuant to Minn. Stat.'176.141.  Generally, under that statute, no compensation is payable unless an employer has actual knowledge of the injury or notice of injury is given within 180 days.  In the present case, there is no dispute that the employer had neither actual nor constructive notice of the injury until service of the employee=s claim petition on April 20, 2004, more than 180 days after the employee=s injury on September 19, 2003.^[1]

 

However, the 180-day notice period does not begin to run until it becomes reasonably apparent to the employee that the injury has resulted in, or is likely to cause, a compensable disability.  Issacson v. Minnetonka, Inc., 411 N.W.2d 865, 40 W.C.D. 270 (Minn. 1987).  The date on which an employee has obtained sufficient knowledge to trigger the duty to give notice is a question of fact.  Barcel v. Barrel Finish, 304 Minn. 536, 232 N.W.2d 13, 28 W.C.D. 4 (1975); Busch v. Wal-Mart, slip op. (W.C.C.A. June 9, 2004).

 

The compensation judge found that September 19, 2003, was the date on which the employee knew or could reasonably have recognized that her carpal tunnel condition was not only work-related, but that it had resulted in, or was likely to result in, a compensable disability.  The judge based this findings on several factors, including:  1) the employee=s testimony that she had started to notice symptoms in her right hand and wrist at work as early as 2001 which she associated with her typing duties; 2) the September 19, 2003, EMG findings, which confirmed that she had carpal tunnel syndrome rather than a cervical radiculopathy; and 3) her testimony that on that date her doctor advised her that the carpal tunnel syndrome was work-related and not due to her non-work fall.

 

The employee acknowledges that Dr. Foreman told her on September 19, 2003, that her carpal tunnel syndrome was not due to her slip and fall, and was instead due to her typing duties at work.  However, she asserts on appeal that she had not, in her own mind, accepted that her right carpal tunnel syndrome was causally related to her work activities and believed instead that it was related to her slip and fall.  In support of this assertion, she points to the history she gave to Dr. Foreman and to Dr. Davies, as documented in their medical records, which suggested that she still associated the inception of her right upper extremity symptoms with the non-work slip and fall incident.  She argues that in the absence of clear evidence directly indicating her mental acceptance of the possibility of a work-related cause for her carpal tunnel syndrome, the compensation judge erred in concluding that the 180-day period for notice had begun to run.

 

The standard, however, is not a subjective one based on whether an individual employee has or has not definitely accepted the likelihood that an injury may be work-related.  Rather, the standard requires that a compensation judge consider whether Athe claimant, as a reasonable person, should recognize the nature, seriousness, and probable compensability of his injury.@  Issacson, 411 N.W.2d at 867, 40 W.C.D. at 274, quoting 3 A. Larson, The Law of Workmen=s Compensation' 78.41(a) (1983) (emphasis added).  The factors identified by the compensation judge provide substantial support for a finding that a reasonable person would have recognized the nature and probable work causation of this injury by September 19, 2003.

 

The employee argues, however, that the legal issues presented in Gillette injury cases are complex, so that an employee should not be deemed to understand whether such an injury may be compensable until an attorney has been consulted.  The employee points out that she first consulted a workers= compensation attorney about her claim on April 15, 2004, and that notice was given only a few days later.  In support of this argument, the employee cites two cases in which this court affirmed findings that the employees did not realize that their conditions were work-related until after they had consulted an attorney.^[2]  Unlike the present case, both cases cited by the employee involved an absence of medical opinion linking the employees= conditions with work activities until after the consultation with the attorney.  Further, in both cases, this court affirmed factual determination by the compensation judge and we have repeatedly observed that, under our standard of review, cases affirming a compensation judge on substantial evidence grounds have limited precedential value.  Figgs v. Dungarvin, slip op. (W.C.C.A. Dec. 9, 2004).  In addition, we have previously explicitly rejected the argument that an employee=s understanding of the legal concept of a Gillette injury is a necessary prerequisite to the knowledge that triggers the notice period.  Cf., Flanagan v. Bellboy Corp., slip op. (W.C.C.A. April 27, 1992);^[3] Busch v. Wal-Mart, slip op. (W.C.C.A. June 9, 2004).

 

Substantial evidence supports the compensation judge=s finding, and we affirm.