BROOKS A. DUEHN, Employee/Cross-Appellant, v. CONNELL CAR CARE, INC., and AUTO-OWNERS INS. GROUP, Employer-Insurer/Appellants, PREFERREDONE ADMIN. SERVS., MINN. DEP’T OF EMPLOYMENT AND ECON. DEV., BLUE CROSS BLUE SHIELD OF MINN. AND BLUE PLUS, SURGICAL INST. OF S.D., and SANFORD HEALTH, Intervenors.

The employer and insurer appealed from the compensation judge’s findings that the employee provided timely notice of an injury on November 18, 2014, and that the November 2014 injury was a substantial contributing cause of the employee’s disability following surgery on January 19, 2015. The employer and insurer also appealed from the judge’s award of medical expenses to intervenor Sanford Health. The employee appealed from the compensation judge’s findings that the employee failed to provide timely notice of an injury on August 21, 2013, and that the employee failed to prove he conducted a reasonably diligent job search following his release to return to work in June 2015. We affirm in part and reverse in part.

The employer, Connell Car Care, a small seven-person shop located in Luverne, Minnesota, sells and services classic and previously owned cars. The employee, Brooks Duehn, was hired in 2011 to service motor vehicles. Although he left school in the seventh grade, the employee is a talented auto electronics technician. The employee also changed oil, replaced and serviced tires, worked on radios, and installed water pumps for the employer. The employer was insured against workers’ compensation liability by Auto-Owners Insurance.

The employee had a history of low back pain prior to working for the employer, including treatment following a motor vehicle accident in 2006 and chiropractic care in 2009. The employee also suffered from a knee injury following the non-work-related motor vehicle accident. The employee was off work for several months following knee surgery in early 2013.

The employee claimed three injuries to his low back while working for the employer. On August 21, 2013, while removing a tire from an SUV, the employee felt a pop in his back as he set the tire down. He kept working but requested assistance reinstalling the tire. (Finding 9.) He initially sought chiropractic care and was then seen by Dr. Stephen Chesley at Sanford Luverne Medical Center on September 11, 2013, complaining of back pain. The employee was prescribed pain medication and a muscle relaxant.

The employee alleged a second work injury in February 2014 when he slipped and fell on ice landing on his buttocks. A February 5, 2014, Sanford clinic chart note indicates the employee was seen by Dr. Jennifer Thone on that date describing a back injury that occurred five days previously when he fell on ice, landing on his tailbone. The employee continued to work, but on March 5, 2014, Dr. Thone restricted the employee from lifting over 20 pounds due to “his back injury.” (Ex. A.) The employee received an epidural steroid injection and medication, but continued to experience back pain. On April 24, 2014, his restrictions were increased to no lifting over 10 pounds and no work more than six hours per day. These restrictions were good for at least 30 days. The compensation judge found the employee failed to provide timely notice of a work injury on this date. The employee has not appealed this finding.

On November 18, 2014, the shop was busy. The employee was assigned work which included removal of tires. The employee was bending over to pull a tire off a balancer when he felt a pop in his low back. He sent a text message that day to Mr. Connell, the owner of the shop, asking to be taken off work doing tires. He texted, “I did to[o] much today and think I should start to abide by my work restritions [sic] from my Dr Jennifer thone.” The employee was seen by Dr. Thone on November 20, 2014. He reported he was at work and lifted a tire and felt a pop. Dr. Thone permitted the employee to return to work, but stated the employee was “to avoid replacing tires due to the heavy lifting and twisting that that requires.” (Ex. A.)

The employee completed a First Report of Injury on January 6, 2015, describing the first injury which had occurred over a year before, on August 21, 2013. The employee testified that when he realized his back problem was serious enough to require surgery and time off from work, he was desperate. He testified that he had no prior workers’ compensation claims, no training, and was not sure how to proceed.

The employee underwent fusion surgery on January 19, 2015. He was unable to work and participated in extended post-surgery physical therapy. In April 2015, the employee was let go from his employment when it became apparent the employer could not accommodate the employee’s restrictions. The employee was seen in follow-up by Dr. Thone on June 16, 2015. The doctor noted the employee was progressing with physical therapy and doing much better. In order to qualify for unemployment benefits, the employee requested a note stating he could work. Dr. Thone, accordingly, released the employee to sedentary work.

On August 11, 2015, Dr. Michael M. Kearney, an orthopedic surgeon, examined the employee at the request of the employer and insurer. Dr. Kearney opined that, assuming the employee’s history was true, the employee suffered three injuries to his low back on August 21, 2013, February 5, 2014, and November 18, 2014, that were permanent aggravations of the employee’s pre-existing low back condition. He also determined the employee was not at maximum medical improvement (MMI) and assigned restrictions of no lifting over 10 pounds. He further opined the employee’s medical care and surgery were reasonable and necessary treatment.

The employee filed claim petitions seeking temporary total disability benefits, payment of medical expenses, and rehabilitation benefits. The employer and insurer denied primary liability claiming that the employee failed to give timely notice of any of the injuries as required by Minn. Stat. § 176.141, and asserted the injuries did not arise out of or in the course of the employee’s employment. Following a hearing on June 3, 2016, the compensation judge found the employee gave timely notice of the November 18, 2014, injury, but failed to provide timely notice of the August 21, 2013, injury or an injury on February 5, 2014. She further found the November 18, 2014, injury was a substantial contributing cause of the employee’s disability following the January 19, 2015, surgery and awarded temporary total disability benefits from the date of surgery through June 16, 2015. The judge denied temporary total disability benefits for the period from June 17, 2015, to May 5, 2016, finding the employee failed to conduct a diligent search for work during this time. Temporary partial disability benefits were awarded beginning May 6, 2016, as well as a vocational rehabilitation consultation. Finally, the judge found that intervenors Blue Cross Blue Shield, the Surgical Institute of South Dakota, and Sanford Health were entitled to payment for medical expenses incurred following the November 18, 2014, injury. Both the employer and insurer and the employee have appealed.

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(3). 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), summarily aff’d (Minn. June 3, 1993).

The primary dispute in this case is whether the employee provided statutory notice to the employer of his injuries on August 21, 2013, and November 18, 2014. To receive workers’ compensation benefits, the employee must show he provided notice of the injury to the employer, or that the employer had actual knowledge of the injury, within the 180 day period prescribed by Minn. Stat. § 176.141. Notice must be given when it becomes reasonably apparent that an injury has resulted in, or is likely to cause, a compensable disability. Anderson v. Frontier Commc’ns, 819 N.W.2d 143, 146, 72 W.C.D. 417, 420 (Minn. 2012); Issacson v. Minnetonka, Inc., 411 N.W.2d 865, 866-67, 40 W.C.D. 270, 272 (Minn. 1987); Rinne v. W.C. Griffis Co., 234 Minn. 146, 47 N.W.2d 872, 16 W.C.D. 348 (1951).

The employee contends the compensation judge’s finding that he failed to provide sufficient, timely notice of the August 21, 2013, injury is inconsistent with, and unsupported by, the record as a whole. The employee argues that a co-worker knew about the injury shortly after it happened and his knowledge should be imputed to the employer. Mr. Connell, however, testified that he had no notice that the employee’s low back condition was work-related. Mr. Connell and Mr. Sterrett, the shop supervisor, testified they were unaware of any claimed work injury in August 2013 until the employee completed the First Report of Injury on January 6, 2015, more than a year after the incident occurred. The employee testified the owner had been very good to him following his knee surgery, and he did not want to make a big deal out of it. He was also concerned about insurance costs the employer might incur and planned on handling it on his own. In a statement taken by an insurance adjuster on January 14, 2015, the employee stated he advised the doctor he saw following the injury that he did not wish to make a workers’ compensation claim. (Findings 11, 12.)

Substantial evidence supports the compensation judge’s finding that the employee did not give timely notice to the employer of the August 21, 2013, injury. We, accordingly, affirm.

Following the injury on November 18, 2014,^[1] the employee sent a text message to Mr. Connell asking to be removed from tires and stating “I did to[o] much today and think I should start to abide by my work restritions [sic] from my Dr Jennifer thone.” Mr. Connell responded, “I told em no tires for you.” Another text or call was made on November 19. On November 20, Mr. Connell texted the employee asking “How did doctor appt go today?” The employee replied that the doctor thought he had herniated another disc, that when remote season was over he would have to have surgery, and that until then he would need to be careful. The employee testified his intention was to let the employer know that he had hurt himself and that things at work could not keep going the way they were.

At the November 20, 2014, appointment, Dr. Thone released the employee to return to work but assigned restrictions stating, “Please allow him to avoid replacing tires due to the heavy lifting and twisting that that requires. He is trying to keep working though [sic] his pain and is working on getting his back injury treated. Having him do more that he or his back can handle has the potential to end up with him not being about to work or causing an injury that will be permanently disabling.” (Ex. A.)

The crucial question in this case is whether the employer had timely “actual knowledge” of the November 18, 2014, injury. For actual knowledge to exist, an employer must have some information connecting work activity with an injury. Actual knowledge is knowledge of such information as would put a reasonable person on inquiry that the disability or injury is work-related. Anderson, 819 N.W.2d at 149-50, 72 W.C.D. at 427; Issacson, 411 N.W.2d at 867, 40 W.C.D. at 273. For example, in Greene v. W & W Generator Rebuilders, 302 Minn. 542, 224 N.W.2d 157, 27 W.C.D. 65 (1974), the Minnesota Supreme Court held that an employee’s complaints to supervisors that heavy work was bothering his back, the employer’s knowledge of the employee’s pre-existing impairment, and the employee’s leave for spinal surgery combined to put the employer on reasonable notice to investigate further and was sufficient to meet the actual knowledge requirement.

Likewise, here, Mr. Connell was aware of the employee’s pre-existing back problems, the employee reported to Mr. Connell that he was doing too much work with tires on the day the November 18 incident occurred, and Mr. Connell was aware of the employee’s doctor’s appointment two days later. The employer received work restrictions from Dr. Thone dated November 20 prohibiting work with tires due to the heavy lifting and twisting required and stating that doing so could cause a permanent disabling injury. Mr. Connell also knew that Dr. Thone believed the employee had herniated a disc and would need surgery. The compensation judge could reasonably conclude the employer had information sufficient to place a reasonable person on inquiry and that the statutory requirement of actual knowledge of the injury was met. We, therefore, affirm.

The employer and insurer argue that the compensation judge erred in implicitly finding that the employee’s injury of November 18, 2014, arose out of and in the scope and course of employment. Because the employee failed to list this injury on the First Report of Injury, and failed to mention it in a recorded statement taken a few months after the injury, the employer and insurer argue the employee did not meet his burden of proving that he sustained a work-related injury on November 18, 2014. We disagree.

The compensation judge explicitly found the November 18, 2014, injury was a substantial contributing cause of his disability from employment following the January 19, 2015, surgery. In his IME opinion, Dr. Kearney, relying upon the history provided by the employee, opined the November 18, 2104, injury at work was a permanent aggravation of the employee’s pre-existing low back condition. The compensation judge found the employee’s testimony credible and accepted his testimony that he injured his low back at work on November 18, 2014, when lifting a tire. The employee immediately notified Mr. Connell of what happened and sought medical treatment. Dr. Thone’s chart note of November 20, 2014, provides a history that the employee was at work and lifted a tire and felt a pop. He had to go home and lie down with pain and numbness in both legs. Substantial evidence supports the compensation judge’s determination that the November 18, 2014, injury was a substantial contributing cause of the employee’s work-related disability and we affirm.

The compensation judge found that the employee failed to prove a diligent job search following his release by Dr. Thone to sedentary work on June 16, 2015, and therefore was not entitled to temporary total disability benefits from June 17, 2015, through May 5, 2016, when he secured employment.^[2] The judge found the employee credibly testified he applied for work with various employers following his surgery and that he had at least ten interviews. However, the judge pointed to the lack of any job logs or other records documenting a job search, and concluded the record failed to establish the employee conducted a diligent job search.

The employee argues there is no legal requirement that the employee’s job search be documented outside a formal rehabilitation plan. While we agree that there is no statutory requirement that the employee keep job logs to substantiate his job search, the issue of a diligent job search is a question of fact for the compensation judge. Hanmer v. Wes Barrette Masonry, 403 N.W.2d 839, 841, 39 W.C.D. 758, 761 (Minn. 1987)(citing McClish v. Pan-O-Gold Baking Co., 336 N.W.2d 538, 36 W.C.D. 13 (Minn. 1983)). The employee provided minimal detail regarding the scope of his job search or the time spent looking for work. He testified he was required to keep job logs to receive unemployment compensation, but did not offer the records into evidence. Given the absence of job logs or other evidence to support the employee’s limited testimony, the compensation judge’s finding that the employee failed to establish a reasonably diligent job search was not unreasonable or manifestly contrary to the evidence. We affirm.

The compensation judge found that Sanford Health was entitled to payment for expenses incurred and medical services provided to the employee as itemized on their intervention claim. The employer and insurer argue the compensation judge erroneously allowed Sanford Health to intervene and awarded reimbursement of its medical expenses in error. We agree.

Minn. Stat. § 176.361, subd. 2(a), provides in pertinent part: “An application or motion to intervene must be served or filed within 60 days after a potential intervenor has been served with notice of a right to intervene . . . . Where a motion to intervene is not timely filed under this section, the potential intervenor interest shall be extinguished.” The record reflects that counsel for the employee served a notice of the right to intervene upon Sanford Orthopedics in Sioux Falls, South Dakota, on May 12, 2015. The attached affidavit of service also lists Sanford Luverne Medical Center and Sanford Hospital. The record further reflects that the employee’s attorney served a subsequent notice upon Sanford Health, to the attention of their legal department, on August 24, 2015. Sanford Health did not file a motion to intervene until March 14, 2016, which was clearly outside the 60 day period required by statute. (Ex. 2; Intervenors Ex. A.)

This court recently reversed an award of reimbursement to an intervenor that failed to file its motion to intervene within the 60 days required by the statute. Erven v. Magnetation, LLC, 76 W.C.D. 433 (W.C.C.A. 2016). The language of Minn. Stat. § 176.361, subd. 2(a), plainly and clearly requires that the intervenor’s interest be extinguished if the motion to intervene is not timely filed. Once a health care provider decides to intervene, it becomes a party to the litigation and as a party must follow the statute and rules in the same manner as any other party. Xayamongkhon v. ISD 625, No. WC15-5852 (W.C.C.A. Apr. 19, 2016).

The employee argues he nevertheless has the right to assert a claim for treatment directly. We are not persuaded. It is true that medical treatment is one of the benefits owed to an injured employee under the statute and an employee may assert a claim for that treatment directly. Adams v. DSR Sales, Inc., 64 W.C.D. 396 (W.C.C.A. 2004). However, as we stated in Xayamongkhon, id., although an intervenor’s claims may be inextricably connected with those of the employee, those claims belong to the intervenor, not the employee. If the employee’s attorney in that situation wishes to represent the claims of the intervenor, it must be established unequivocally at the hearing that the attorney represents not only the employee but also represents the intervenor. That is not the case here.

Where the intervention motion of Sanford Health was not timely filed under Minn. Stat § 176.361, subd. 2(a), the compensation judge erred in allowing the intervention claim. We, therefore, reverse the award of medical expenses to Sanford Health.