VICKY WALD, Employee, v. WALGREENS CORP., and SEDGWICK CLAIMS MGMT. SERVS., INC., Employer-Insurer/Appellants, and ANTHEM BLUE CROSS & BLUE SHIELD, PARK NICOLLET HEALTH SERVS., and MINNEAPOLIS CLINIC OF NEUROLOGY, LTD., Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

NOVEMBER 8, 2006

 

File No. WC06-188

 

HEADNOTES

 

NOTICE OF INJURY - SUBSTANTIAL EVIDENCE.  Where the employee=s symptoms after commencing work were similar to symptoms she had experienced following a previous automobile accident, it was not unreasonable for the compensation judge to conclude that the notice period did not begin to run until the employee received a doctor=s report connecting her condition to her work activities.

 

Affirmed in part and reversed in part.

 

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

Compensation Judge: Paul V. Rieke

 

Attorneys: Friedrich A. Reeker, Minneapolis, MN, for the Respondent.  Shannon A. Nelson, Aafedt,

Forde, Gray, Monson & Hager, Minneapolis, MN, for the Appellants

 

 

OPINION

 

DEBRA A. WILSON, Judge

 

The employer and insurer appeal from the compensation judge=s findings concerning notice of injury.  We reverse in part and affirm in part.

 

BACKGROUND

 

The employee was involved in a motor vehicle accident in approximately 1971 or 1972 and was hospitalized for back and neck injuries.^[1]  She sought chiropractic treatment thereafter when her neck was aching.  The records of chiropractor, Gregory Holmberg, establish that the employee presented with complaints of constant neck pain and daily headaches on November 20, 1996, giving a history of the onset of pain five to six months earlier.  She treated with Dr. Holmberg from November of 1996 until April 4, 1997, for symptoms that also included left-sided upper back pain, bilateral arm pain, and left arm tingling.

 

The employee began working for Walgreens [the employer] in August of 1997.  Her job, in the employer=s photo department, required repetitive lifting, carrying, pushing, and bending of her head.  After a couple of years, the employee began to develop neck and arm symptoms, which progressed over time.  On August 30, 1999, the employee returned to Holmberg Chiropractic, complaining of left-sided upper back pain and neck pain.  She treated there through October 11, 1999.  Dr. Andrew Smith first examined the employee in March of 2000.^[2]

 

In March of 2002, the employee began to miss time from work because of her symptoms, and a March 5, 2002, cervical MRI showed a small left paracentral C4-5 disc herniation with some cord deformity, as well as a moderate-sized disc herniation at left C5-6.  In February of 2003, the employee underwent a C5-6 discectomy.

 

The employee returned to her usual work with the employer in the summer of 2003.  In the summer of 2004, the employee began performing different work activities, which required her arms to be stretched out in front of her.  The employee=s symptoms returned and intensified in May or June of 2004, and the employee underwent additional cervical surgery at the C4-5 level in August of 2004.

 

The employee retained the services of attorney Friedrich Reeker in October of 2004, because she suspected that her work activities at the employer had contributed to her neck symptoms.  Mr. Reeker wrote to the employee=s physician, Dr. Smith, and asked whether the employee=s work activities were a substantial contributing cause of the employee=s neck condition and related surgeries.  In late February of 2005, Dr. Smith wrote that the work activity was a significant factor in the employee=s neck condition, although he qualified his opinion by apportioning approximately 50% responsibility to the employee=s prior neck injuries.  Shortly thereafter, on March 18, 2005, the employee filed a claim petition seeking temporary total disability benefits as a result of Gillette injuries^[3] allegedly occurring in March 2002, February 2003, and August 2004.

 

The employer and insurer had the employee examined by Dr. Mark Larkins on December 27, 2005.  In a report dated January 20, 2006, Dr. Larkins opined that the employee had sustained a Gillette injury, arising out of and in the course of her employment with Walgreens, in March of 2002.  He did not believe that the employee had sustained additional Gillette injuries in February of 2003 or August of 2004, indicating that her problems at those times were a continuation of the initial Gillette injury.

 

The claim petition proceeded to hearing, and, in Findings and Order filed on May 11, 2006, the compensation judge found that the employee had sustained a Gillette injury in March of 2002; that the employee had not sustained additional Gillette injuries after that date; that the employee=s subsequent surgeries and symptoms were a continuation of the 2002 injury; that the employee had been temporarily totally disabled for four weeks in March of 2002, for 13.8 weeks after February 27, 2003, and from August 26, 2004, to the date of hearing, as a result of the 2002 injury; and that the employer had received timely notice of injury.  The employer and insurer appeal from the judge=s findings as to notice.^[4]

 

STANDARD OF REVIEW

 

On appeal, the Workers' Compensation Court of Appeals must determine whether "the 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 (2004).  Substantial evidence supports the findings if, in the context of the entire record, "they 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, findings of fact should not be disturbed, even though the reviewing court might disagree with them, "unless 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.@  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

 

DECISION

 

The relevant portion of Minn. Stat. ' 176.141 reads as follows:

 

Unless knowledge is obtained or written notice given within 180 days after the occurrence of the injury no compensation shall be allowed, except that an employee who is unable, because of mental or physical incapacity, to give notice to the employer within 180 days from the injury shall give the prescribed notice within the 180 days from the time the incapacity ceases.

 

The compensation judge in the present case made two findings regarding notice.  The first reads:

 

At some point in time while the employee was employed at the employer, the employee did have a conversation about the employee=s neck symptoms with Assistant Manager Charlene Johnson, during which time this assistant manager indicated that maybe the employee=s neck complaints were related to her work activities at the employer.  Such conversation is tantamount to actual notice of the Gillette injury satisfying the notice provisions of Minn. Stat. ' 176.141 in that such information within the conversation would put a reasonable employer on inquiry as to whether the employee=s neck problems were work related.

 

The employer and insurer contend that the employee=s testimony regarding a conversation with an assistant manager about her neck symptoms was disingenuous and manifestly contrary to the weight of the evidence.  As substantial evidence does not support the judge=s finding of timely notice via this conversation, we reverse that finding.

 

The employee was asked repeatedly during her deposition, and on cross-examination at the hearing, whether she had told anyone in management that her work activities were causing her neck symptoms.  She repeatedly answered either Ano@ or Anot that I can recall.@  However, after direct and cross-examination at hearing, upon questioning by the compensation judge, the employee testified, for the first time, that she did remember mentioning neck problems to her assistant manager, Charlene Johnson.  The employee went on to testify that Ms. Johnson Asaid that she thought that probably it could be related to my job.@  The employee, however, was unable to identify when this conversation took place.  When asked, Ado you have any time frame . . .?@, the employee responded, AI wish I did.@  When asked, Awas it before your first surgery . . .?@, the employee responded, AI honestly do not remember when it would have been.@  The employee was unable to even identify a time period during which Ms. Johnson worked for the employer.  The employee began work for the employer in August of 1997 and left there in August of 2004.  Given that employee=s Gillette injury occurred in March of 2002, and given that there is no credible evidence as to when the employee had this conversation with her assistant manager, the judge erred in concluding that the conversation satisfied the notice requirements of Minn. Stat. ' 176.141.  That finding is therefore reversed.

 

The judge=s second finding with regard to notice reads:

 

Considering the employee=s prior motor vehicle accident involving her neck, her ongoing symptoms during the 1990s, the gradual development of her condition over an extended period of time, and her testimony indicating she was only wondering or questioning the possible connection between her work and her symptoms until Dr. Smith related his opinion of causation, demonstrated to the Court that until the receipt of the report of Dr. Smith, the employee could not have reasonably Aconcluded@ that her condition was work related.

 

The employee gave statutory notice to the employer of her claimed March 2002 Gillette injury.

 

The employee apparently did not give notice until her attorney filed a claim petition on her behalf,^[5] within a month of receipt of Dr. Smith=s report connecting the employee=s work activities to her neck problems.  In contesting the judge=s notice finding on appeal, the employer and insurer contend that the Acourts have interpreted [the notice] statute to require less than a clear medical opinion on causation to trigger the employee=s responsibility to give notice of an injury to her employer.@  The notice period does not ordinarily begin to run from the time an employee receives a medical opinion on causation but rather from the time the employee has adequate knowledge as to the work-related nature of her condition from any source.  See Jones v. Thermo King, 461 N.W.2d 915, 917, 43 W.C.D. 458, 461 (Minn. 1990).  Although this is a very close case, we are not persuaded that the judge=s notice decision is clearly erroneous or unsupported by substantial evidence.

 

The employee=s symptoms four months prior to commencing work for Walgreens included neck pain, left-sided upper back pain, bilateral arm pain, and arm tingling.  At that time, she was performing what she described as a Anon-physical@ job.  When the employee was seen at Park Nicollet Methodist Hospital on February 25, 2002, while working for the employer, her symptoms, again, consisted of neck pain, left shoulder pain, and arm aching.^[6]  She first lost time from work due to those symptoms in March of 2002.

 

At hearing, the employee testified that she went to an attorney on October 7, 2004, because AI finally started putting things together and thought that possibly [work] was the only thing that it could have been, because that=s when I started developing problems, is after a few years of working there and doing that repetitive job over and over.@  She further testified, Athat=s when I really started to question it, but I didn=t know at that time.  I had never I guess really addressed it with the doctor before.@  The employee=s deposition testimony from June 28, 2005, suggests that the employee suspected that her work activities were contributing to her neck pain as early as 2000 and that those suspicions increased after her surgery in 2004.  However, the judge found that the employee=s suspicions were Ain the nature of only >wondering= and not to such an extent that would cause her to conclude that she had a work condition.@  We cannot say that the judge=s conclusion to this effect was unreasonable.

 

A determination of whether an employer had timely notice of an employee=s claimed work injury is a question of fact.  Roers v. Jennie-O-Foods, slip. op. (W.C.C.A. June 23, 1997).  In the instant case, medical records establish that the employee=s symptoms in March of 2002 were similar to symptoms she had experienced in 1996 and 1997, before she began work for the employer.  In addition, the employee=s testimony indicates that she had neck symptoms following an automobile accident in 1971 or 1972 and that she considered the possibility that the automobile accident was a cause of her neck symptoms while working for Walgreens.  Under these circumstances, it was not unreasonable for the compensation judge to conclude that, prior to receipt of Dr. Smith=s February 28, 2005, report, a reasonable person in the employee=s circumstances would not have had adequate knowledge that her condition was work-related so as to trigger the commencement of the notice period.  We therefore affirm the judge=s finding that the employee=s notice to the employer and insurer was timely.