CAROLYN OLSON HUSAIN, Employee/Appellant, v. PAUL A. SCHMITT MUSIC CO. and MEADOWBROOK INS. GROUP, Employer-Insurer, and ABBOTT NW. HOSP., MEDICA HEALTH PLANS, CONSULTING RADIOLOGISTS, MINNESOTA DEP’T OF EMPLOYMENT & ECON. DEV., and HEALTHPARTNERS, Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
MARCH 28, 2012
No. WC12-5538
HEADNOTES
NOTICE OF INJURY - ACTUAL KNOWLEDGE. Substantial evidence, including the testimony of the employer’s benefits administrator, supported the compensation judge’s conclusion that the employer did not have timely notice or actual knowledge of the employee’s injury as specified by Minn. Stat. § 176.141.
Affirmed.
Determined by: Wilson, J., Stofferahn, J., and Hall, J.
Compensation Judge: Rolf G. Hagen
Attorneys: Larry N. Jensen, Thomton, Sperry, Jensen & Keithahn, Lichfield, MN, for the Appellant. Brent C. Kleffman, Peterson, Logren & Kilbury, St. Paul, MN, for the Respondents.
OPINION
DEBRA A. WILSON, Judge
The employee appeals from the compensation judge’s decision that she failed to give timely notice of injury as specified in Minn. Stat. § 176.141. We affirm.
BACKGROUND
The employee began working as a director of institutional sales for Paul A. Schmitt Music Company [the employer] in 1999 or 2000.[1] Her job involved selling musical instruments to schools and other facilities. Her office was located in the Galleria, in Edina, not far from her home. She traveled frequently by car to meet with clients, and she also drove regularly to the employer’s warehouse in Brooklyn Center to check on inventory. Her compensation was commission-based, and she had no set hours of work.
On Wednesday, March 11, 2009, the car the employee was driving was rear ended as the employee was stopped at a traffic light about four blocks from her office. Police records indicate that the employee called the Edina police to report the accident at 3:07 p.m. that day, and an officer arrived at the accident scene shortly thereafter to prepare a report. The employee testified that the accident occurred as she was traveling back to her office following a trip to the Brooklyn Center warehouse. She further testified that, because she was shaken up in the accident, she went home rather than returning to her office as planned.
The employee reported for work the next morning as usual. When she told a coworker about the accident, that coworker advised her to seek medical care to protect her health and her right to insurance coverage.[2] The employee then went to the emergency department of Fairview Southdale, where she was seen by Dr. James Moe. Dr. Moe prescribed Vicodin for pain and advised the employee to rest and follow up with her usual physician. He also instructed the employee not to drive while taking the Vicodin.
After being seen at the hospital, the employee returned to her office to pick up some materials to use to work from home. The employee testified that, at that time, around noon the day after the accident, she called Beth Palmer, the employer’s benefits administrator, to report the accident, explaining to Ms. Palmer that she had been traveling between the warehouse and her Galleria office when the collision occurred. According to the employee, Ms. Palmer ended the conversation abruptly after informing the employee that the accident was not work-related and that she should contact her automobile insurer. The employee subsequently retained an attorney and applied for no-fault benefits. Ms. Palmer denies having ever received a call from the employee about the accident.
On the evening of Sunday, March 15, 2009, four days after the accident, the employee sent an email to Ms. Palmer, advising her that she would not be at work the next day because of the accident. The employee ultimately returned to her usual job duties, but she continued to receive treatment for ongoing neck and shoulder symptoms.
On June 7, 2009, about three months after the accident, the employee sent Ms. Palmer an email in which she listed various sales she had made and the commissions owing for those sales. At the end of the email, the employee asked if she would have to take vacation for a medical appointment to treat the continuing effects of the March accident.
The employee was terminated from her employment with her employer in early January 2011. Ten months later, in October 2011, the employee filed a claim petition alleging entitlement to workers’ compensation benefits related to her March 2009 automobile accident. She testified that she had waited as long as she did to make a claim because she did not want to cause trouble at work. The employer and insurer denied that the accident had occurred in the course and scope of the employee’s employment[3] and asserted that the employee had not provided the employer with timely notice of the injury.
The matter came on for hearing before a compensation judge on October 4, 2012. Issues included primary liability and notice as well as the extent of the employee’s disability and the specific nature of the injuries. The employee, Ms. Palmer, and a coworker testified at hearing. Documentary evidence included the employee’s medical records, certain wage and personnel records, and copies of the employee’s two emails to Ms. Palmer. Following the hearing, the compensation judge concluded that the automobile accident and the employee’s resulting injuries were work-related. He also concluded, however, that the claim was barred because the employee had not given timely notice of injury as specified by statute. The employee appeals.
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 (2012). 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 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
Minn. Stat. § 176.141 provides as follows:
Unless the employer has actual knowledge of the occurrence of the injury or unless the injured worker, or a dependent or someone in behalf of either, gives written notice thereof to the employer within 14 days after the occurrence of the injury, then no compensation shall be due until the notice is given or knowledge obtained. If the notice is given or the knowledge obtained within 30 days from the occurrence of the injury, no want, failure, or inaccuracy of a notice shall be a bar to obtaining compensation unless the employer shows prejudice by such want, defect, or inaccuracy, and then only to the extent of the prejudice. If the notice is given or the knowledge obtained within 180 days, and if the employee or other beneficiary shows that failure to give prior notice was due to the employee's or beneficiary's mistake, inadvertence, ignorance of fact or law, or inability, or to the fraud, misrepresentation, or deceit of the employer or agent, then compensation may be allowed, unless the employer shows prejudice by failure to receive the notice, in which case the amount of compensation shall be reduced by a sum which fairly represents the prejudice shown. 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 180 days from the time the incapacity ceases.
The sole issue on appeal is whether the compensation judge erred in concluding that the notice requirements of the statute were not satisfied.
The employee testified that she called Ms. Palmer, the employer’s benefits administrator, on March 12, 2009, after being seen at the emergency room, and that she told Ms. Palmer that her car accident had occurred while she was returning to the office from the employer’s warehouse in Brooklyn Center. Ms. Palmer, on the other hand, maintains that she never talked to the employee about the accident that day and that she would have remembered such a conversation, had it occurred, because she sees only a handful of workers’ compensation claims per year. The compensation judge expressly found Ms. Palmer’s testimony to be more credible on this issue. Credibility assessments are generally for the compensation judge, see Even v. Kraft, Inc., 445 N.W.2d 831, 42 W.C.D. 220 (Minn. 1989), and we find no basis to reverse the judge’s decision on this point here.
The employee also contends that, even aside from the disputed telephone call, the remaining evidence, especially the employee’s email to Ms. Palmer, compels the conclusion that the employer had actual knowledge of the work-related nature of the employee’s car accident. This is a closer issue but, ultimately, we are not persuaded.
The email the employee sent to Ms. Palmer on March 15, 2009, four days after the automobile accident, has a subject line reading “tomorrow” and reads, in its entirety, as follows:
Beth,
I will not be working yet tomorrow, Monday because of the accident. On Friday I plan on working four hours in the morning at the Minnetonka store. I am not suppose [sic] to drive because of the meds. My son is on spring break so he will take me.
I am available at home vai [sic] email or cell phone.
Carolyn
The second email from the employee to Ms. Palmer is dated June 7, 2009, about three months later, and has a subject line of “Commissions.” It reads, again in its entirety:
Beth,
I will not get back until Monday eve. Here is what info I have with me and I can give the rest Tuesday morning.
1. University of Nebraska Omaha
13 Kawai UST9 $45,240
6 Kawai GM10s 44,670
19 damp chasers $7,765
These three sales I will get 10% of the gross and Scott Carlson will get 10%
2. Dassel-Cokato
Yamaha CVP403 $4,080
Dolly $380
I get 18% and Jeff Skoll (road rep) gets 2%
3. Lease for Less
Yamaha CLP 340 $2,495
Yamaha CVP 401 $3,295
4. Alan Bassin
Kawai GM10 #102933 $6,800
5. Minnetonka Store
NP30 $399
I am also taking Monday June 8th as a vacation day. Do I have to use my vacation days for my treatment from the car accident in March?
It is undisputed that Ms. Palmer did not follow up with the employee in response to the March 15, 2009, email and that she did not answer the employee’s June 2009 question as to the need for the employee to take vacation time for treatment. The employee points out, however, that Ms. Palmer acknowledged in testimony that employees would only report attendance and vacation issues to her in the context of a workers’ compensation claim. Given that acknowledgment, and given that Ms. Palmer knew that the employee drove a substantial amount for work and knew that the accident had occurred on a workday, the employee maintains that Ms. Palmer had sufficient information to trigger a duty to inquire about the nature of the accident. These circumstances, according to the employee, satisfy the “actual knowledge” language of Minn. Stat. § 176.141.
“Actual knowledge” has been defined as information that a reasonable person would act upon in the ordinary course of affairs. Rinne v. W.C. Griffis Co., 234 Minn. 146, 47 N.W.2d 872, 16 W.C.D. 348 (1951). However, “for actual knowledge to exist, an employer must have some information connecting work activity with an injury . . . . It is simply not enough that the employer is aware that an employee [is experiencing symptoms].” Issacson v. Minnetonka, Inc., 411 N.W.2d 865, 867, 40 W.C.D. 270, 273 (Minn. 1987). In the present case, we cannot conclude that the compensation judge erred as a matter of law in finding the email communications from the employee to Ms. Palmer insufficient to establish actual knowledge, especially given the brevity of the notes, the fact that there were only two such emails over the course of many months prior to the employee’s termination, and the fact that Ms. Palmer was the employer’s payroll administrator as well as the employer’s benefits administrator.[4]
In his memorandum, the compensation judge explained his conclusion on this issue as follows:
The employer was aware that the employee had been involved in an automobile accident. The employer was not aware that the automobile accident was in any way work-related. While there were emails from the employee that mentioned her accident, there was no indication given by the employee that would put the employer on notice that the accident arose out of employment. Svare v. Concordia College, slip op. (W.C.C.A. October 13, 1995). The first notice given to the employer that the employee had been involved in a work-related accident was the filing of the employee’s claim petition on October 24, 2011. This after the 180-day notice period required by Minn. Stat. § 176.141. The employee is barred from receiving benefits by operation of the statute.
Given the record as a whole, we cannot conclude that the judge’s decision is clearly erroneous or unsupported by substantial evidence, and we affirm.
[1] The employee had also worked for the employer years before, immediately following her graduation from college.
[2] The coworker was not the employee’s supervisor, and there is no claim that the employee told him that the accident was work-related.
[3] The employer and insurer took the position that the employee was going home, not returning to the office, and that, because the accident had occurred during the employee’s commute, her injuries were not compensable. See Swanson v. Fairway Foods, 439 N.W.2d 722, 41 W.C.D. 1010 (Minn. 1989).
[4] We would note here that Rinne, the case the employee cites as authority for her “inquiry notice” argument, has many facts that weigh toward a finding of actual knowledge: the employee’s foreman saw the employee jump from a tractor, the employee came to him saying he needed time off because his back was bothering him, and the foreman had observed the employee to walk stooped over after the event. Nevertheless, the supreme court affirmed the industrial commission’s conclusion that the employer did not have actual knowledge of the employee’s work injury. The supreme court has also cautioned that the statutory notice requirement is not a mere technicality. Kling v. St. Barnabas Hosp., 291 Minn. 257, 190, N.W.2d 674, 26 W.C.D. 53 (1971).