MARIA E. GARCIA, Employee/Respondent, v. WAL-MART, SELF-INSURED/CLAIMS MGMT., INC., Employer/Appellant, and LIBERTY LIFE ASSURANCE CO. BOSTON, MINNEAPOLIS CLINIC OF NEUROLOGY, TWIN CITIES ORTHOPEDICS, P.A., MINN. DEP’T OF HUMAN SERVS./BRS, VOCATIONAL RESTORATION SERVS., INC. and HUTCHINSON HEALTH, Intervenors.

The self-insured employer appeals the compensation judge’s findings as unsupported by substantial evidence.  The employer claims that the compensation judge erred in his rejection of the employer and insurer’s notice defense.  The employer asks that we reverse the compensation judge’s award of benefits in this matter.  The employee responded that the compensation judge used the correct standard for assessing when the notice period began to run and that the employee provided timely notice of her injury to the employer.  We affirm.

The employee, Maria E. Garcia, worked for the employer stocking shelves from 2001 to 2013.  The employee’s work required repetitive grasping and lifting of objects.  The employer was self-insured against workers’ compensation liability.

The employee emigrated from Mexico to Minnesota in the mid-1990’s and does not communicate in English without the assistance of an interpreter.  The employee completed middle school in Mexico.

On February 11, 2012, the employee was injured in a fall from a stepladder while at work for the employer, with complaints primarily in her lower left leg and left knee.  On a follow-up examination for that injury on May 31, 2012, the employee described pain in her right hand located in the area of the first dorsal compartment, running back to her elbow.  The pain was apparent upon extension and rotation of her right hand.  Paul Coleman, PA-C, diagnosed the employee with De Quervain tenosynovitis and a splint was ordered.^[1]

The employee continued to experience numbness and tingling in her right hand, along with intermittent sharp pain radiating toward her elbow.  On June 27, 2012, the employee sought treatment from Daniel Marek, M.D.  The employee described her right arm and hand symptoms.  Dr. Marek diagnosed De Quervain tenosynovitis and directed that an electrodiagnostic study be performed to assess for carpel tunnel syndrome.  The study showed significant abnormalities bilaterally with no response in the right upper extremity and reduced response in the left upper extremity.  Possible diagnoses were identified as chronic inflammatory demyelinating polyneuropathy (CIDP), inflammatory sensory neuropathy, or multiple sclerosis.  Dr. Marek assessed the employee’s condition as not due to carpal tunnel syndrome and referred the employee to a neurologist.  On August 7, 2012, the employee was examined by Felix Zwiebel, M.D., who ordered an MRI scam which ruled out spinal cord pathology.^[2]

On October 1, 2012, the employee was examined on follow-up by PA-C Coleman.  The employee described continuing right wrist pain, right forearm numbness, and left upper extremity pain.  The medical chart note for that visit states “[The employee] works at Wal-Mart stocking shelves with milk, and the constant opening of boxes and lifting containers causes increase in pain, mostly in the median nerve dermatome.”  PA-C Coleman diagnosed the employee with carpal tunnel syndrome and ulnar nerve neuropathy.  The employee was prescribed Prednisone (a steroid) and a wrist brace.  No work restrictions were placed on the employee.^[3]

On October 24, 2012, the employee was examined by William H. Laney, M.D.  In the charting for that examination, Dr. Laney noted the employee’s description of neck and upper right extremity pain that had been ongoing for six months.  The chart note states in part: “. . . [the employee] attributes [the pain symptoms] to her work at Wal-Mart where she lifts boxes repetitively.”  Dr. Laney directed physical therapy to address the employee’s cervical spine.  Dr. Laney indicated that no work restrictions were to be put in place.^[4]

On December 5, 2012, PA-C Coleman conducted a follow-up examination of the employee where she described neck pain that radiated into both hands, upper right extremity pain, and pain in her left hand.  A cervical spine MRI scan and EMG was ordered.^[5]  The employee underwent an EMG on January 10, 2013, which showed bilateral median neuropathies at the wrist.  The results were read as consistent with carpel tunnel syndrome.^[6]

On February 11, 2013, the employee underwent right carpal tunnel release surgery performed by Gordon Walker, M.D.^[7]  The employee did not obtain relief from the procedure.^[8]

On September 9, 2013, the employee was examined by Mark Fisher, M.D.  Dr. Fisher noted that the employee’s condition was the result of repetitive trauma.  Cortisone injections were conducted.  At follow-up appointments, swelling was present, and changes in color and temperature were observed in the employee’s right forearm.^[9]  As part of the discussion with Dr. Fischer, the employee came to understand that her right arm condition was a work injury.^[10]

On October 7, 2013, the employee notified the employer that she suffered a work injury to her arm.  On the employer-supplied form, the employee indicated that the condition had been ongoing for a year and that she had not reported it immediately because she did not think the condition was due to her employment.^[11]

On November 21, 2013, the employee underwent an independent medical examination (IME) conducted by Thomas Jetzer, M.D.  Dr. Jetzer opined that the employee did not suffer any work injury and that her condition was the result of some form of neuropathy, not stocking shelves.  Dr. Jetzer maintained that there was no ergonomic component to the condition and repetitive motion would not cause the employee’s symptoms.^[12]

On January 13, 2014, the employee underwent revision surgery to her right forearm conducted by Dr. Fisher.  The employee’s condition did not improve after the surgery.  On June 12, 2014, Dr. Fisher placed permanent restrictions on the employee of 10 pounds lifting, limited torquing, and limited grasping.^[13]

On March 4, 2015, the employee underwent an IME conducted by Robert A. Wengler, M.D.  Dr. Wengler reviewed the employee’s medical history, including two right forearm surgeries.  Dr. Wengler assessed the employee with unusual neuropathic symptoms in the right upper extremity, diagnosed as tardy ulnar nerve palsy and median neuropathy, and symptoms of mild allodynia indicative of mild reflex sympathetic dystrophy (RSD).  Dr. Wengler opined that the employee’s problems arose from repetitive work activities while working for the employer.  Dr. Wengler rated the employee at a 14.25% permanent partial disability (PPD) under Minn. Rules 5223.0400, subp. 6.A. and 5223.0540, subp. 1.D.^[14]

On May 5, 2015, the employee underwent an independent neurological examination conducted by James R. Allan, M.D.  The employee indicated that her condition did not improve after stopping work or after her right arm surgeries.  Dr. Allen described the employee’s situation as a “very complicated and somewhat confusing case.”  Dr. Allen opined that the repetitive nature of the employee’s work for the employer was a contributing factor to her current condition.  Dr. Allen agreed with the RSD diagnosis and 14.25% PPD rating of Dr. Wengler.  Dr. Allen opined that the employee’s medical care and treatment was reasonable and necessary.^[15]

On August 19, 2015, Dr. Jetzer supplemented his IME.  Dr. Jetzer reiterated his conclusions from his November 21, 2013 IME.  Dr. Jetzer emphasized that the employee’s condition was appropriately treated through neurology and that an ergonomic assessment would show that the employee’s condition could not have arisen through her employment duties.^[16]

The employee filed a Claim Petition seeking temporary partial disability (TPD) and permanent partial disability benefits (PPD), and rehabilitation benefits.  The matter came on for hearing before Compensation Judge Gary Mesna on September 17, 2015.  The compensation judge found that the employee had an onset of right hand and forearm symptoms in 2012 and began treatment for those symptoms on May 31, 2012.  The compensation judge found that the employee experienced a Gillette-type injury to her bilateral forearms culminating with the surgery performed on February 11, 2013. The employee’s repetitive work duties were found to be a substantial contributing cause of the injury.  The compensation judge found that the notice given to the employer was timely, due to the employee first becoming aware that she had a compensable work injury with her discussion with Dr. Fisher on September 19, 2013, notice being provided on October 7, 2013, and the employer failing to make any showing of prejudice.  The compensation judge awarded benefits and the employer appealed on the sole issue of timely notice.

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 (2014).  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).

Absent actual knowledge by an employer of an employee’s work injury, an employee is required to provide notice of a work injury to the employer.  Minn. Stat. § 176.141.  The statute provides a notice period of 14 days.  Where the 14-day period is exceeded, notice can be provided within 30 days, so long as the employer does not demonstrate prejudice from the delay.  Where the 30-day period is exceeded, notice can be provided up to 180 days where the employee demonstrates good cause for the delay and the employer is not prejudiced.

The compensation judge determined that the Gillette-type injury culminated on February 11, 2013, the date of employee’s first surgery.  The employee provided notice of the injury to the employer on October 7, 2013, 238 days after the injury.  The notice was provided outside of the period allowed by Minn. Stat. § 176.141, and the employer contends that this defeats the employee’s claim for benefits.

Where an employee has suffered a work injury, the Minnesota Supreme Court has held that the notice period may be tolled until the time that “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, 867, 40 W.C.D. 270, 274 (Minn. 1987).  The tolling period extends “until the claimant, as a reasonable person, should recognize the nature, seriousness and probable compensable character of his injury or disease.”  Id. (quoting 3 A. Larson, The Law of Workmen’s Compensation § 78.41(a) (1983) now cited as 7 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law § 126.05[1] (2011)).

The compensation judge found that the employee first became aware that she may have a compensable work injury on September 19, 2013, when Dr. Fisher informed her that repetitive motion from her employment was the cause of her condition.  The compensation judge found that the employee did not know that her arm pain had resulted from an injury which was caused by her work duties and therefore constituted a compensable injury.

The employer maintains that the employee should have recognized that she had suffered a work injury prior to Dr. Fisher’s examination on September 19, 2013.  The employer cites the employee’s statements to medical providers that her job duties were causing pain as proof that the employee understood the she had experienced a work injury.  Those statements occurred on October 1, 2012, and October 24, 2012.  The employer also cites the employee’s testimony at the hearing that her work duties caused her pain.^[17]   The employer relies upon these facts to maintain that the compensation judge’s findings regarding the employee’s knowledge of her condition are not supported by substantial evidence.  We disagree.

The compensation judge plainly distinguished between the employee experiencing pain while performing her work duties and the employee suffering a compensable injury.  In the employee’s interactions with medical providers, no work restrictions were imposed to limit the employee’s work activities in response to her complaints of pain.  The employee’s symptoms were not so obviously related to any particular work activity to provide a basis for the employee to conclude, in the absence of a competent medical opinion, that she had suffered a work injury.  Indeed, the employer’s medical expert contended that there was no causation of any compensable injury that arose out of the employee’s work duties.  Under these facts, there is substantial evidence to support the compensation judge’s finding that the employee was unaware that her job duties had caused an injury for which she was obligated to provide notice to the employer.  This lack of knowledge appropriately tolled the notice period under the standards set forth by the Minnesota Supreme Court.  Anderson v. Frontier Commc’ns, 819 N.W.2d 143, 72 W.C.D. 417, (Minn. 2012); Issacson, 411 N.W.2d at 867, 40 at 274 (citing Rebiski v. Pioneer Tel. Co., 262 N.W.2d 424, 30 W.C.D. 216 (Minn. 1978)); Bloese v. Twin City Etching., Inc., 316 N.W. 2d 568, 34 W.C.D. 491 (Minn. 1982); Barcel v. Barrel Finish, 304 Minn. 536, 232 N.W.2d 13, 28 W.C.D. 4 (1975); Clausen v. Minn. Steel Co., 186 Minn. 80, 242 N.W. 397, 7 W.C.D. 146 (1932).^[18]

The employer maintains that the employee’s testimony at the hearing demonstrated that she was aware of her compensable disability as of the date of her Gillette-type injury.  The evidentiary support for this contention is that the employee agreed that her right hand condition was serious at the time of her surgery and that people with work injuries receive compensation.^[19]  But the employee also testified that she did not know what a Gillette-type injury was and that she did not realize that she had an injury until the examination by Dr. Fischer.^[20]  The employee also testified that she thought an injury needed to arise out of a single acute incident to be compensable.^[21]

While more than one inference could be drawn from the evidence, the compensation judge determined that the employee was credible and that she did not become aware of the connection between her pain symptoms and a compensable work injury until she was informed by Dr. Fischer of that connection on September 19, 2013.  When the evidence conflicts or when more than one inference may reasonably be drawn from the evidence, the compensation judge’s findings are to be affirmed.  Substantial evidence exists to support the judge’s finding that the employee gave timely notice to the employer of the occurrence of the injury.  We affirm the compensation judge’s finding that the employee gave timely notice to the employer.