MARIA BONILLA, Employee/Appellant, v. DAKOTA PREMIUM FOODS and ACE USA/ESIS, INC., Employer-Insurer/Cross-Appellants, and CTR. FOR DIAGNOSTIC IMAGING, INGCO INT’L, INC., INJURED WORKERS PHARMACY, NOVACARE REHAB., SUMMIT ORTHOPEDICS, and WEST SIDE CMTY. HEALTH SERVS., Inervenors.

WORKERS’ COMPENSATION COURT OF APPEALS
JANUARY 6, 2015

No. WC14-5728

HEADNOTES

APPEALS - NOTICE OF APPEAL.  Although the notice of appeal failed to specifically list the finding being appealed and did not include a detailed description of the issues being appealed, listing Order Number 1 as being appealed was sufficient to place the respondents on notice of the issues being appealed given the level of specificity in Order Number 1, and its description that the compensation judge was denying benefits “because the employee failed to give timely notice of the 2013 injury.”

NOTICE OF INJURY - ACTUAL KNOWLEDGE.  The testimony of the witnesses in this case presented a conflict requiring resolution by the compensation judge, and it was not error to conclude, based on that testimony, that the employer did not have actual knowledge of the injury.  Furthermore, substantial evidence supported the conclusion that the employee did not establish any of the statutory notice exceptions because the employee had sufficient information to reasonably connect her symptoms to her work activities but failed to report an injury to the employer.

CAUSATION - GILLETTE INJURY.  Although the employee may have “overstated” some of her work activities, and although the medical expert relied upon by the compensation judge did not have the same understanding of some of the weight measures and work activities involved with the employee’s job as those found by the compensation judge, the compensation judge correctly noted that the medical expert was aware of the repetitive lifting and reaching motions, including outstretched reaching, performed by the employee, and the medical expert opined that those movements caused the employee’s shoulder injury.  Therefore, the expert opinion provided sufficient evidentiary support for the compensation judge’s determination regarding causation.

Affirmed.

Determined by:  Cervantes, J., Hall, J., and Stofferahn, J.
Compensation Judge:  Penny D. Johnson

Attorneys:  Vincent A. Petersen, Law Offices of Donald F. Noack, Mound, MN, for the Appellant.  Howard Y. Held and Sarah A. Bennett, Fitch, Johnson, Larson & Held, Minneapolis, MN, for the Cross-Appellants.

 

OPINION

MANUEL J. CERVANTES, Judge

The employee appeals the compensation judge’s determination that although the employee did sustain a Gillette[1] injury to her left shoulder culminating on January 20, 2013, she did not provide statutory notice to the employer, resulting in the denial of the employee’s claims.  The employer and insurer cross-appeal the compensation judge’s determination that the employee sustained a Gillette injury.

BACKGROUND

The employee, Maria Bonilla, began working for the employer herein, Dakota Premium Foods, in May 2008.  The employee worked on a production line inspecting, weighing, and packaging meats.

The employee reported an injury in the nature of a sore left knee to her employer on March 1, 2010.  The employee treated with her medical provider, West Side Community Health Services.  She missed a few days of work.  She was able to return to work with a 20-pound lifting restriction on March 4, 2010.  The employer also sent the employee to Minnesota Occupational Health.  At Minnesota Occupational Health, the employee was diagnosed with a left knee strain with no swelling, discoloration, deformity, effusion, or ligament instability.  The employer and insurer admitted a cumulative trauma injury to the left knee, culminating on March 1, 2010.  The employee missed no additional time from work other than attending two additional medical appointments.  She returned to her regular work duties and did not seek additional treatment for her left knee thereafter.

On August 24, 2011, the employee reported a second work injury.  Again, she treated with her own physician at the West Side Community Health Services and, at the request of the employer, with Minnesota Occupational Health.  At West Side Community Health Services, the employee complained of pain in the left side of her neck and in her left arm.  She reported lifting heavy barrels of meat with a coworker weighing up to 125 pounds.  The employee reported worsening pain along with numbness and tingling in her arm and decreased strength in the left hand every time she lifted barrels at work.  The employee was assessed with cervical spine strain and left lateral epicondylitis.  The physician at Minnesota Occupational Health diagnosed the employee with lateral epicondylitis and a ligamentous strain.  The employee was advised not to use her left arm for ten days, and physical therapy was recommended.  At the hearing in this matter, the employer and insurer admitted a Gillette injury to the employee’s left elbow and neck culminating on August 24, 2011.  The employer and insurer denied that the employee sustained any injury to her left shoulder in August 2011 or at any other time during her employment.

On August 30, 2011, the employee was seen at Summit Orthopedics for an initial physical therapy evaluation.  She reported left elbow pain over a couple of weeks, but said she had been pain-free since the previous Sunday.  She had some forearm swelling and difficulty with gripping, lifting, carrying, pushing, pulling, and reaching.  She saw Dr. Vijay Eyunni at Minnesota Occupational Health on August 30, 2011, as well.  The employee said that her pain was completely gone, and she wanted to return to her regular job.  She was noted to have full range of motion in the elbow and a good grip and pinch strength.  Dr. Eyunni indicated that the left elbow strain with lateral epicondylitis had resolved completely.  The employee performed some lighter-duty work with the employer for a couple of weeks, and she returned to her usual duties after that.

In November 2012, the employer installed a meat washer in the employee’s area.  The machine used water and an acid to clean contaminants and other materials from the meats.  The plant manager trained the employee in the use of the machine.  At the hearing, he testified that meat products would be placed by the employee and her coworkers onto rollers to be fed into the machine.  The machine would then wash the meat parts and dry them and the meat would then drop into a barrel.  The meat would be boxed and weighed as usual.  The plant manager stated that the process eliminated a visual meat inspection by the employee.

In early January 2013, the chief union steward approached the human resources manager on behalf of the employee and two other employees concerning the additional meat washing machine duties that began in November 2012.  The employee was concerned about having additional work duties added after the meat washing machine was installed.

The compensation judge heard testimony regarding the employee’s work activities from the employee and from the employer’s plant manager and human resources manager.  The compensation judge concluded that despite the employee’s testimony that she did not typically have inspection duties as a part of her job, the employer’s human resources manager and plant manager testified credibly that “inspection of certain meat products was always part of the employee’s job.”[2]  The compensation judge also found that the meat washing machine “required more time to handle the meat before it was boxed and weighed.”  (Finding 9.)

The plant manager testified that on January 21, 2013, he observed that the meat washing machine had not been used that day.  The human resources manager and the plant manager addressed the situation with the employee.  The chief union steward was present as well.  Based on his notes from the meeting, the human resources manager recalled that the employee and her coworker had claimed it was not their job to wash meat in the meat washing machine.  The employee testified that she advised the employer at that time that she had difficulty physically performing the work because of left upper extremity symptoms and that she needed a different job.  The employer denied that the employee reported that she could not perform the work because of an injury, although the employee was complaining it was too much work.  The human resources manager testified that the meat washing machine eliminated the inspection process so that it was one task replacing another.  According to the human resources manager, the grievance was over either obtaining increased pay if the meat washing duties remained part of the job, or obtaining an additional employee to perform the meat washing task.  Ultimately, the employee was sent home on January 21, 2013.

The employee returned to work on January 22, 2013.  At that time, she continued to refuse to perform the meat washing portion of her job.  She was suspended again until January 25, 2013.  On January 25, 2013, the employee refused the request of the human resources manager, the plant manager, and the chief union steward to perform her full job, including the meat washing duties.  The employee was terminated as of January 25, 2013.  The compensation judge found that during one of the discussions that took place as a part of this disciplinary process, the employee did complain about lifting too much in the new process.  However, she also found that the employer instructed the employee to stop filling the barrel before dumping it so there would be less weight to be lifted.  She also found that if the employee wanted a different job, she could bid on a different job.  The compensation judge found that the chief union steward also informed the employee that she needed to perform the job as best she could.

The employee returned to West Side Community Health Services on February 6, 2013, and she saw Physician’s Assistant Anders Bengston.  The employee complained of left-sided neck pain with occasional radiation down the arm.  She also complained of occasional numbness and tingling in the arm and hand, including her first two fingers.  Physician’s Assistant Bengston noted that the employee performed repetitive lifting at work.  He diagnosed the employee with left cervical radiculopathy with decreased left grip strength.  The employee was referred to physical therapy.

The employee did not have continuing health insurance, and she did not treat again until June 18, 2013.  At that time, Dr. Sarah Maler of West Side Community Health Services took a history of five months of pain in the employee’s left neck, head, upper back, left shoulder, and arm after lifting heavy 125-pound buckets and dumping them at work.  The employee indicated that pain was present all the time and made worse with lifting and walking.  Dr. Maler noted swelling in the left wrist and weakness in the left hand and arm.  She diagnosed left cervical spine radiculopathy and carpal tunnel syndrome.

On June 27, 2013, the employee filed a claim petition alleging a Gillette injury on February 6, 2013.  The injury date was later amended to January 20, 2013, which was the last full day the employee worked for the employer.

The employee underwent a course of physical therapy with NovaCare Rehabilitation from early July through late November 2013.  She was discharged from therapy on December 5, 2013.  At that time, the therapist noted that the employee had only a little tightness in the left shoulder, but no pain with reaching.

In the meantime, the employee continued to treat with Summit Orthopedics.  She also underwent an MRI of the left shoulder at Center for Diagnostic Imaging on August 21, 2013.  The MRI report indicated that the employee had a mild to moderate supraspinatus tendinopathy with a small and shallow interstitial tear, moderate tendinopathy, and moderate to marked narrowing of the coracohumeral interval with mild subcoracoid bursitis.

The employee then saw Dr. Peter Parten, an orthopedic surgeon at Summit Orthopedics, on September 4, 2013.  Dr. Parten listed a history of gradual onset of left shoulder pain with work activities of lifting 60 to 80 pounds daily and subsequent termination from employment, which the doctor indicated was related to the injury.  He diagnosed the employee with left shoulder impingement and rotator cuff tendinopathy.  He recommended physical therapy and cortisone injections to reduce inflammation and pain.  The employee underwent injections on September 4, 2013, October 23, 2013, and November 27, 2013.  The employee had good but temporary relief from the shoulder injections.  Dr. Parten gave the employee work restrictions that included lifting limitations and no lifting above the shoulder or repetitive lifting, reaching, pushing, or pulling.

The employer and insurer sent the employee for an independent medical examination with Dr. Christopher Meyer, an orthopedic surgeon, on October 22, 2013.  Dr. Meyer issued a report dated November 18, 2013.  He diagnosed the employee with subjective complaints of pain without objective findings in the left elbow, neck, left hand/wrist/fingers, and left shoulder.  He did indicate that the employee had some rotator cuff tendinosis with some partial thickness tearing of the supraspinatus tendon with impingement syndrome and acromioclavicular (AC) joint arthrosis.  He concluded that examination findings did not correlate with MRI findings because the employee’s complaints were global rather than isolated to certain areas.  Dr. Meyer opined that the employee’s complaints were not causally related to work activities with the employer.  If they were, he would have expected the employee’s symptoms to markedly improve after she stopped working.  Instead, they worsened over time.  Dr. Meyer concluded that the employee did not sustain a Gillette injury in January 2013 to the neck or left upper extremity because the only objective finding was rotator cuff tendinitis and AC arthrosis, and those findings would not cause symptoms of numbness and tingling down the arm.  Dr. Meyer noted that if the employee’s shoulder symptoms became more localized, she might require treatment for impingement syndrome, rotator cuff tendinosis, and AC arthrosis in the form of anti-inflammatory medications, activity modification, and exercises.  He opined that the employee had reached maximum medical improvement for her March 1, 2010, knee injury by March 4, 2010, and he opined that the employee had reached maximum medical improvement for the left upper extremity injury by August 30, 2011.  He also indicated that the employee did not sustain a work-related injury in 2013.  Dr. Meyer felt the medical treatment was reasonable and necessary, but there was no additional treatment needed.

On January 9, 2014, Dr. Parten recommended that the employee undergo left shoulder arthroscopic surgery, with decompression, possible distal clavicle excision, and biceps debridement.

On March 10, 2014, the employee underwent an independent medical examination, at the request of her attorney, with Dr. Robert Wengler, an orthopedic surgeon.  Dr. Wengler reviewed a background letter, according to the compensation judge, which included job duties of routinely lifting and manipulating 60 to 80 pound boxes of meat, manipulation of thousands of pieces of meat and boxes of meat per shift, and work with arms outstretched on a repetitive basis.  Dr. Wengler interviewed the employee regarding her job duties as well.  He did not find any obvious problem with the employee’s left knee.  However, he concluded that the employee sustained Gillette injuries to the left shoulder and elbow that had progressed.  He recommended a cervical spine MRI to further evaluate arm and hand symptoms of decreased sensation and weakness.  Dr. Wengler concluded that the employee’s shoulder tenderness and motion limitation was localized to the subacromial space, and he opined that it was consistent with the shoulder MRI findings of subacromial impingement with tendinopathy of the subscapularis and supraspinatus tendons, supraspinatus shallow interstitial tear, and superior labrum tear.  Dr. Wengler agreed with Dr. Parten that the proposed arthroscopic left shoulder debridement surgery was reasonable.  Dr. Wengler indicated that the employee had persistent symptoms of lateral epicondylitis in the left elbow with significant grip strength weakness.

Dr. Meyer issued two supplemental reports after reviewing additional medical records.  Dr. Meyer agreed that because the employee’s symptoms had localized to clear impingement signs in the shoulder, despite treating with subacromial injections, she would be an appropriate candidate for the surgery recommended by Dr. Parten if she believed that her pain symptoms were sufficient to undergo surgery.  Dr. Meyer also reviewed Dr. Wengler’s report and some additional medical records.  Dr. Meyer reiterated his opinion that the employee did not sustain or document a Gillette injury to the left shoulder in January 2013.  Dr. Meyer found the employee’s subjective complaints were beyond his objective findings, but there was tendinosis present without a full-thickness rotator cuff tear.  Dr. Meyer felt it was premature to rate permanent partial disability before shoulder surgery, and he indicated that the employee’s grip strength was variable and normal when distracted.

On May 13, 2014, the case came on for hearing before Compensation Judge Penny Johnson.  The compensation judge addressed the issue of statutory notice for the claimed 2013 injury in finding 26.  She indicated that the employee had previously given notice of her two Gillette injuries in March 2010 and August 2011,[3] and, therefore, that the employee was familiar with what she needed to do to report a work injury.  In finding 26, the compensation judge noted that the employee testified that she had requested a change in jobs and that she notified her employer of a work injury in January 2013 before she was terminated from her employment.  The compensation judge also noted the employee’s testimony that the employer did not understand her and just told her to continue doing her job or she would be fired.  However, the compensation judge concluded that the employee “failed to communicate to the employer in January 2013 that she was claiming a work injury.”  The compensation judge found that the testimony of the employer was more persuasive regarding a lack of notice of a claimed 2013 work injury.  The compensation judge did not find the employee’s testimony that she reported an injury on her last day of employment persuasive.  The compensation judge acknowledged that there was some discussion about a heavier work load relating to the meat-washing duty, but the compensation judge was “unconvinced the employee reported in January 2013 that she sustained an injury to her left upper extremity.”

The compensation judge went on to find that the employee “did not give notice of the claimed injury until June 2013, five months after her employment was terminated.”  (Finding 26.)  However, the compensation judge determined that notice five months after a claimed injury was insufficient, and she stated that notice more than 30 days after the injury was not shown to be due to ignorance, inadvertence, or inability of the employee, or to fraud, misrepresentation, or deceit of the employer.

In finding 27, which the employer and insurer challenge on cross-appeal, the compensation judge determined that the employee established that she sustained a Gillette injury to her left shoulder culminating on January 20, 2013.  The compensation judge credited the opinion of Dr. Wengler concerning causation of the employee’s left shoulder problem as more persuasive than the opinion of Dr. Meyer.  The compensation judge also indicated that the employee performed significant repetitive lifting and reaching activities at work, which included outstretched positions, and which ultimately led to the need for restricted activities of the left upper extremity and the need for medical treatment.  The compensation judge indicated that the employee sought medical treatment for her shoulder injury very soon after her termination from employment.  The symptoms initially occurred while she was repetitively lifting and dumping meat at work.  The compensation judge indicated that the employee performed basically the same work activities for almost five years with gradually increasing left shoulder and left neck symptoms.  The tenderness in the employee’s left shoulder and limitation of motion in the shoulder correlated with the shoulder MRI findings.  Furthermore, the compensation judge found that the employee established that her left shoulder surgery as recommended by Dr. Parten was reasonable and that the January 2013 work injury was a substantial contributing cause of the need for the surgery.  Again, the compensation judge credited the opinion of Dr. Wengler that a Gillette injury to the shoulder substantially contributed to the need for surgery.

Ultimately, the compensation judge determined that the employee did sustain a Gillette injury to her left shoulder, culminating on January 20, 2013.  However, because she determined that the employee failed to provide timely notice of her shoulder injury, the compensation judge denied the employee’s claims in their entirety.

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.  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).

“[A] decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which [the Workers’ Compensation Court of Appeals] may consider de novo.”  Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993).

DECISION

Notice of Appeal

As a threshold issue, the employer and insurer argue that the employee did not properly raise the issue of statutory notice regarding the injury in her notice of appeal.  As such, they argue that the Workers’ Compensation Court of Appeals does not have jurisdiction to review finding number 26 regarding statutory notice of the injury.

On appeal, this court’s “review is limited to the issues raised by the parties in the notice of appeal or by a cross-appeal.”  Minn. Stat. § 176.421, subd. 6; Ruether v. State, Mankato State Univ., 455 N.W.2d 475, 42 W.C.D. 1118 (Minn. 1990).  An appellant’s notice of appeal must specify the following:

(1)  the order appealed from;
(2)  that appellant appeals from the order to the Workers’ Compensation Court of Appeals;
(3)  the particular finding of fact or conclusion of law which the appellant claims was unsupported by substantial evidence in view of the entire record as submitted or procured by fraud, coercion, or other improper conduct; and
(4)  any other ground upon which the appeal is taken.

Minn. Stat. § 176.421, subd. 3.  The compensation judge made factual findings regarding statutory notice in finding number 26.  The employee’s notice of appeal lists Order Numbers 1 and 2 as being appealed.  Order number 1 states, “The claims are all denied because the employee failed to give timely notice of the 2013 injury, and the 2010 and 2011 injuries resolved within two weeks after the injuries.”  The only finding listed in the notice of appeal is finding number 2, which involved background information about the employee.  The notice of appeal contains no further written description of the issues being raised on appeal.

The employee argues that the appeal of finding number 2 was a “typographical error” and that that the notice of appeal was supposed to list finding number 26.  The employee goes on to argue that order number 1 was specifically appealed and that it sufficiently apprised the employer and insurer of the issue that the employee meant to appeal, which is whether she provided proper statutory notice.  The employer and insurer argue that the employee’s failure to give any indication of the issues being appealed, regardless of possible mistakes, is jurisdictional and that the employee’s appeal should be dismissed.  The employer and insurer argue that appealing order number 1 was insufficient to place them on notice of the issues the employee would be raising on appeal because the order also references the earlier injury dates.

There is no requirement in the statute or this court’s rules that would mandate a particular format for a notice of appeal.  A notice of appeal is sufficient if it shows an intent to appeal and the order appealed from, and it apprises this court and the other parties of the facts and issues being appealed.  See Johnson v. A Touch of Class Painting, Inc., 72 W.C.D. 723, 728 (W.C.C.A. 2012) (citing Atkinson v. Northern States Power Co., 55 W.C.D. 347, 351 (W.C.C.A. 1996), summarily aff’d (Minn. Oct. 29, 1996)).  In Moe v. Univ. of Minn., 70 W.C.D. 395, 397 (W.C.C.A. 2009), summarily aff’d (Minn. Oct. 5, 2009), the notice of appeal did not list any findings of fact as being appealed, but it stated that the employee was appealing the compensation judge’s ruling that the employee’s injuries did not arise out of or in the course and scope of her employment.  See also Johnson, 72 W.C.D. at 728 (holding that a written description of the issues being raised on appeal is sufficient).  In both Moe and Johnson, the appeals were allowed to proceed.

We acknowledge the employer and insurer’s concerns with the notice of appeal in this case, including the lack of a more detailed description of the issues.  However, given the favored policy of allowing an appeal to proceed, as in cases such as Moe and Johnson, and the level of specificity in order number 1, we conclude that listing order number 1 in the notice of appeal was sufficient to put the employer and insurer on notice that the employee was appealing the compensation judge’s denial of benefits “because the employee failed to give timely notice of the 2013 injury.”  (Order No. 1.)

Notice of Injury

The employee argues that the employer had notice of her Gillette injury culminating on January 20, 2013.  Minn. Stat. § 176.141 states, in part, that:

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.

The employee argues that she told her employer about an injury before she stopped working, and she argues that the employer had actual knowledge of the injury.  “Actual knowledge” is defined in workers’ compensation proceedings as follows:

“Actual knowledge” is knowledge of such information as would put a reasonable man on inquiry.  Mere knowledge of disability following a traumatic injury is not sufficient, for the facts and circumstances of either the disability or the injury must be such as would put a reasonable man on inquiry that the disability is work-related.

Anderson v. Frontier Commc’ns, 819 N.W.2d 143, 150, 72 W.C.D. 417, 427 (Minn. 2012) (citing Pojanowski v. Hart, 288 Minn. 77, 81, 178 N.W.2d 913, 916, 25 W.C.D. 206, 209 (1970)).  “It is simply not enough that the employer is aware that an employee has shoulder pain.”  Issacson v. Minnetonka, Inc., 411 N.W.2d 865, 867, 40 W.C.D. 270, 273 (Minn. 1987) (citations omitted).  Rather, to constitute actual knowledge, “an employer must have some information connecting work activity with an injury.”  Id.

The parties presented conflicting testimony at the hearing regarding whether the employee reported a work injury involving her shoulder.  The compensation judge explained in her memorandum of law that the employee testified that she told the employer she could not physically perform her work and that she needed a different job.  By contrast, the employer’s witnesses testified that the employee did not tell them she was injured, that she only indicated that her job duties might result in an injury, and that she did not feel the meat washing duties were part of her job.  The compensation judge found that “[t]he employee’s testimony she reported an injury in her last days of employment during the disciplinary discussions was not persuasive.”  (Finding 26.)  She also noted that the employee had previously reported two Gillette injuries and that the employer had a practice of filling out paperwork and referring the employee to medical evaluations with its preferred physicians.  Therefore, the compensation judge found that “[t]he testimony of the employer was more persuasive concerning notice of a claimed 2013 work injury.”[4]  (Finding 26.)  We acknowledge that the employee did present testimony supporting her position that she provided notice to the employer.  However, it is not the role of this court to re-evaluate the credibility and probative value of witnesses’ testimony.  Redgate v. Sroga’s Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988).  The testimony of the witnesses in this case presented a conflict requiring resolution by the compensation judge, and upon review of the evidence as a whole, it cannot be concluded that the compensation judge erred in accepting the testimony from the representatives of the employer over that of the employee or in determining that the employer did not have actual knowledge of the injury.

Even if there is no actual knowledge, Minn. Stat. § 176.141 states:

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 compensation judge acknowledged that the employee did provide notice within 180 days when she filed her claim petition.  However, the compensation judge found that the employee had not shown that her delayed notice was “due to ignorance, inadvertence, or inability of the employee, or to fraud, misrepresentation, or deceit of the employer.”  The compensation judge noted the employee’s prior injuries and reports, and she explained her conclusion that the employee had not established any of the statutory notice exceptions.

The employee argues that she could not have had knowledge of a shoulder injury or symptoms until her treatment on June 18, 2013, at West Side Community Health.  She argues that this would have been the first reference to specific shoulder symptoms.  Therefore, she argues that notice should have been timely pursuant to the statute.

As explained in Anderson, the standard is “the information available to” the employee, whether or not it is documented in the medical records.  819 N.W.2d at 148, 72 W.C.D. at 425 (citing Isaacson, generally).  The Supreme Court noted that the employee in Anderson was aware of the fact that the wear and tear on his back was the result of his work activities.  Id.  The Court reached a similar conclusion in Isaacson, stating that “viewing the record as a whole, substantial evidence exists to sustain the compensation judge’s implicit finding that employee had sufficient information concerning the nature of her injury, its seriousness, and probable compensability . . . so as to trigger the running of the 180-day period for giving notice.”  411 N.W.2d at 867, 40 W.C.D. at 275.  The Court stated that “the statutory time for giving the required notice commences to run not from the time there exists a medical opinion on causation . . . but rather from the time it becomes reasonably apparent to the employee that the injury has resulted in, or is likely to cause, a compensable disability.”  Id.  See also Anderson, 819 N.W.2d at 147-48, 72 W.C.D. at 423-24.  The date on which an employee has sufficient knowledge to trigger the duty to give notice of injury is a question of fact for the compensation judge, and must be affirmed if it is supported by substantial evidence.  Anderson, 819 N.W.2d at 147-48, 72 W.C.D. at 423 (internal citations omitted).

Here, the compensation judge explained, in her memorandum of law, that she found the employee’s testimony credible with regard to “the repetitive nature of her daily work activities from May 2008 through January 20, 2013, particularly lifting out and upward (with outstretched arms) and dumping heavy barrels of meat products into boxes that were weighed.  She also pushed boxes of meat repetitively.”  The compensation judge also noted the severity of the employee’s symptoms in her left upper extremity, and she explained that “[o]ther than [the employee’s] repetitive work activities, there was no alternative identified cause of the employee’s shoulder condition.”  Thus, in reaching her conclusion that the employee did not establish any of the statutory notice exceptions, the compensation judge determined, at least implicitly, that the employee had sufficient information to reasonably connect her symptoms to her work activities, but she failed to report an injury in January 2013 as she had with previous injuries.  The record in this case, including the hearing testimony and the medical records, provided substantial evidence to support the compensation judge’s conclusions regarding a lack of notice of injury, and we affirm.

Cross Appeal - Gillette Injury

On cross-appeal, the employer and insurer argue that the finding of a Gillette injury culminating on January 20, 2013, is clearly erroneous and unsupported by substantial evidence in the record.

The compensation judge found the causation opinion of Dr. Wengler more persuasive than the causation opinion of Dr. Meyer.  Whether an employee has proven a Gillette injury is a question of fact for the compensation judge.  Nelson v. Hormel Foods, slip op. (W.C.C.A. Mar. 6, 2014) (citing Carlson v. Minneapolis Pub. Hous. Auth., slip op. (W.C.C.A. June 19, 1977)).  As the trier of fact, it is the compensation judge’s responsibility to resolve conflicts in expert medical testimony, and where there is adequate foundation for the opinions adopted by the judge, this court will normally uphold the compensation judge’s choice among medical experts.  See Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985).

The employer and insurer argue that Dr. Wengler’s opinion did not have adequate foundation because it was based on inaccurate, incomplete, or ambiguous assumptions about the employee’s work activities.  For example, they argue that the employee testified and Dr. Wengler wrote in his report that the barrels weighed 120 pounds each, and this would have been twice the amount that they actually weighed according to testimony from the employer and the compensation judge’s own findings.  There are also questions about what Dr. Wengler believed regarding the pace of the employee’s work, the number of boxes the employee filled per day, and the amounts that she lifted during the day.

Dr. Wengler examined the employee, took her medical history, and was given a description of the employee’s work activities.  Therefore, he had sufficient foundation to render a medical opinion.  See Omdahl v. Polaris Indus., Inc., slip op. (W.C.C.A. June 24, 2014); Caizzo v. McDonald’s, 65 W.C.D. 378, 382 (W.C.C.A. 2005).  Dr. Meyer may have had more or different details, but that goes to weight and not the foundation for the opinions at issue.  While there may be some differences in the details, an expert need not express or even be aware of every relevant fact for his or her opinion to be valid.  See, e.g., Bossey v. Parker Hannifin, slip op. (W.C.C.A. Mar. 14, 1994).

The employer and insurer cite finding number 5, in which the compensation judge made findings of fact regarding the employee’s work activities, and they point to the fact that the compensation judge largely adopted the plant manager’s testimony when it came to the disputed aspects of the employee’s work activities.  However, the compensation judge indicated that Dr. Wengler had a good understanding of the employee’s work activities.  Therefore, the employer and insurer argue that the compensation judge erred in relying on Dr. Wengler’s opinions, which were based on assumptions that were at least partially inaccurate given the compensation judge’s findings.

We disagree.  The compensation judge explained in her memorandum that she was aware of the purported discrepancies raised by the employer and insurer, and she acknowledged that the employee may have “overstated” some of her work activities.  However, she correctly stated that the employee had been performing basically the same work activities for almost five years, and that Dr. Wengler was aware of the repetitive lifting and reaching motions.  Although Dr. Wengler may have overstated some of the weights and amounts of activities involved, the employee was still moving “heavy weights” and performing lifting and outstretched reaching motions on a repetitive basis, as the compensation judge described them in her memorandum of law.  Dr. Wengler opined that those repetitive motions and activities caused the employee’s left shoulder condition.  Again, it is not the role of this court to re-evaluate the credibility and probative value of witness testimony and choose different inferences.  Redgate, 421 N.W.2d at 734, 40 W.C.D. at 957.  There was sufficient foundation for Dr. Wengler’s opinion, and it provided sufficient evidentiary support for judge’s causation determination.  Therefore, we affirm.



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

[2] The compensation judge described the employee’s work activities as follows:

In a typical work day, the employee and her female coworker filled a little less than 90 60-pound boxes of meat.  Meat was placed in a 17-gallon barrel that weighted approximately 100 pounds if completely filled, but the barrel would typically not be completely filled.  The two employees held onto handles on the outside of the barrel with outstretched arms, and lifted and tipped the contents into a box set on top of a scale on the tabletop.  The line moved right to left.  Some of the variety meats the employee moved and weighed had to also be visually inspected for contaminants.  The employee also moved (by pushing containers of meat on a roller line) and weighed lighter products, such as livers and kidneys.  These products were in 15-to-30 pound containers.  The employee moved and weighed approximately 300-400 of the lighter boxes per day.  She would enter a code, and reach up and pull down a label to place on the lighter boxes.  The employee did not fill more than a thousand boxes per day as she testified, but she moved more than a thousand individual meat items per day.  (Finding 6.)

[3] The compensation judge concluded that the employee’s left knee injury from March 2010 resolved within two weeks.  The compensation judge also concluded that the employee’s August 2011 left elbow and neck injury resolved as well.  She believed it would have resolved within about two weeks of the injury date, which was August 24, 2011.  Furthermore, the compensation judge concluded that the employee did not establish that she had sustained a left shoulder injury in August 2011.  These conclusions have not been appealed.

[4] The assessment of a witness’s credibility is the unique function of the trier of fact, and this court must give due weight to the opportunity of the compensation judge to observe the witness and assess his or her credibility.  Even v. Kraft, Inc., 445 N.W.2d 831, 834, 42 W.C.D. 220, 225 (Minn. 1989); Brennan v. Joseph G. Brennan, M.D., P.A., 425 N.W.2d 837, 839-40, 41 W.C.D. 79, 82 (Minn. 1988).