CAUSATION – GILLETTE INJURY; CAUSATION – SUBSTANTIAL CONTRIBUTING CAUSE. Imposition of liability for a Gillette injury on an employer and insurer requires medical evidence connecting the employee’s disability to the employee’s job duties. Where, in assigning liability to the employer and insurer in this case, the compensation judge failed to address the issue of whether the employee’s work for the employer was, by itself, a substantial contributing factor in the employee’s Gillette injury, the matter was remanded for reconsideration of that issue and for appropriate findings and order.
GILLETTE INJURY – DATE OF INJURY; GILLETTE INJURY – ULTIMATE BREAKDOWN; NOTICE OF INJURY – GILLETTE INJURY; PRACTICE & PROCEDURE – STATUTE OF LIMITATIONS. The judge’s findings on these issues are based on the determination of a Gillette injury culminating on December 1, 1992. Since we have vacated that determination for further consideration, we vacate the applicable findings and request the compensation judge to review these issues on remand.
SETTLEMENTS – INTERPRETATION. The compensation judge appropriately concluded that the employee’s current claims are not directly barred by the terms of a prior stipulation for settlement.
Compensation Judge: William J. Marshall
Attorneys: Raymond R. Peterson, McCoy, Peterson, Jorstad, Ltd., Minneapolis, Minnesota, for the Respondent Employee. Matthew C. Kopp, Kelly R. Rodieck & Assocs., St. Paul, Minnesota, for Respondent Employer-Insurer. Penny F. Helgren, Brown & Carlson, P.A., Minneapolis, Minnesota, for the Appellants.
Affirmed in part, vacated in part, and remanded in part.
GARY M. HALL, Judge
The employer and insurer appeal from the compensation judge’s findings that the employee sustained a Gillette[1] injury culminating on December 1, 1992, that the employer and insurer had timely notice of the injury, that the employee’s claims were not barred by the statute of limitations, and that the employee’s claims were not barred by a settlement between the parties in 2004. We affirm in part, vacate in part, and remand to the compensation judge for further proceedings in accord with this decision.
Alapati Noga was drafted by the Minnesota Vikings in 1988 and played as a defensive lineman from 1988 through 1992. The employee testified that he was small for a defensive lineman and tried to make up for his size with speed and quickness. He also used his head rather than just his shoulder in making tackles, a tactic which was then allowed in the NFL. The employee stated that after tackling in this manner he would sometimes experience headaches and wooziness. He reported these symptoms to the trainer or team doctor either during or after a game. The staff provided Advil and Tylenol and at times gave him a blanket and told him to rest in the training room.
The employee’s contract was not renewed by the team at the end of the season in 1992 and he became a free agent. He was subsequently hired by the Washington Redskins and played with that team for the 1993 season. The employee was released by the team following that season. In 1994 he was picked up in midseason by the Indianapolis Colts and played four to eight games. While playing for these teams, the employee continued to experience hits to the head during tackles and blocks, and at times he experienced headaches and nausea. He testified that he was typically given pills by team trainers and physicians when he came off the field and went to the training room. The employee testified that he continued to minimize any injuries to protect his career. The employee was not picked up by the Colts after the 1994 season. He then played in the Arena Football League for the San Jose SaberCats for the 1996 and 1997 seasons and for the Portland Forest Dragons for the 1999 season. He continued striking his head while playing for these teams and noted that his headaches were worse and of greater duration toward the end of his football career. The employee retired from football in 1999.
In 2001, the employee filed a claim petition for workers’ compensation benefits against the Vikings associated with 11 specific orthopedic injuries. The claim was settled and an Award on Stipulation was served and filed on March 23, 2004.
The employee applied for Social Security disability benefits in the fall of 2007. In an appeal from an initial denial, he reported that his condition had changed for the worse since December 1, 2007, with worsened memory loss and vision, and increasing blackouts[2] and memory loss. Following submission of further medical and visual examination records, the employee was awarded Social Security disability in findings dated February 27, 2009, which included statements that while playing football, the employee sustained numerous concussions and musculoskeletal injuries, and had been left with very poor vision,[3] being legally blind and unable to drive. The employee submitted an NFL player disability benefits application in June 2009, which was also accepted.
In February 2011, the employee was seen for a neuropsychological consultation by Gayle Hostetter, a psychologist, at the request of his treating physician because of memory problems which the employee worried might indicate the beginning of dementia. The employee reported to Ms. Hostetter a history of memory problems as well as other cognitive, neurologic, and medical problems that he attributed to his career as an athlete throughout school and as a professional football player. Ms. Hostetter opined that the employee’s intellectual functioning showed a general decline, meeting a diagnosis for dementia. She noted that his level of “performance does not clearly indicate [the] etiology, although multiple head trauma certainly is indicated as an important factor.”
The employee treated with Dr. Laila Spina, Psy.D., at Pacific Neuropsychology Services for individual therapy for several years beginning in 2011. Beginning in December 2011, the notes from these sessions frequently discuss the employee’s plans to complete paperwork to apply for benefits from the NFL’s “Plan 88” program for former players with dementia, and his request for help from Dr. Spina with that process.
The employee was seen for a neuropsychological evaluation at the request of his attorney by Thomas M. Misukanis, Ph.D., a clinical neuropsychologist, on December 1, 2014. Based on his interview with the employee, the results of neuropsychological, academic, and intellectual testing, and a review of pertinent medical records, Dr. Misukanis concluded that the employee met the standards for a diagnosis of Major Neurocognitive Impairment (dementia) under the criteria set out in DSM-5. He attributed the employee’s cognitive deficits to the combined effect of several factors, including ADHD, untreated sleep apnea, chronic pain, cannabis use, prior methamphetamine and alcohol abuse, psychological disturbance, and multiple concussion injuries sustained while playing professional football. Dr. Misukanis rated the employee with an 86.5 percent permanent partial disability. He further opined that the employee was not currently employable. Although acknowledging that the employee’s concussion history was not the sole cause of the employee’s cognitive dysfunction, Dr. Misukanis considered it to be a significant contributing factor.
The employee was also given a vocational/psychological evaluation by Philip Haber, Psy.D., at Metropolitan Rehabilitation Services. Dr. Haber concluded that the employee was permanently and totally disabled due to his dementia and ADHD in combination with his orthopedic injuries.
In January 2015, the employee’s attorney filed a claim petition for workers’ compensation benefits against the Minnesota Vikings for the effects of specific alleged head injuries and for a Gillette injury to the head. In response, the Vikings denied primary liability and offered a number of affirmative defenses, including notice and statute of limitations defenses.
The employee was evaluated on behalf of the employer and insurer on May 16, 2015, by Stanley Ferneyhough, Ph.D., a neuropsychologist. Dr. Ferneyhough agreed with the diagnosis of Major Neurocognitive Disorder. However, he disagreed with Dr. Misukanis on causation. In his opinion, the employee’s condition was not due to his employment as a defensive lineman between 1988 and 1992 by the Minnesota Vikings. He opined that the employee had not experienced concussions during that period sufficient to cause significant neuropsychological sequelae. Dr. Ferneyhough attributed the employee’s condition to his documented abuse of crystal methamphetamine and cannabis. He agreed that the employee was currently totally disabled but noted that the duration of total disability into the future was uncertain and dependent on the results of appropriate medical, psychological and chemical dependency treatment.
The employee’s claims were heard by Compensation Judge William Marshall on April 8, 2016. In his Findings and Order, the compensation judge found that the employee had not proven that he sustained an injury on any of the specific dates alleged in the claim petition. However, the judge concluded that the employee had sustained a Gillette injury culminating on December 1, 1992, the last day he was employed by the Vikings. The judge also determined that the Vikings had notice of the employee’s claim for a Gillette injury and that the statute of limitations had been tolled. Finally, the judge found that the employee’s claims were not closed out by the 2004 stipulation for settlement. The employer and insurer appeal.
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.”[4] 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.[5]” Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed.[6] 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.”[7]
At the hearing, the employee alleged he had sustained head injuries on seven specific dates while playing for the Vikings that were substantial contributing factors in the diagnosis and in his claim for permanent total disability benefits. The compensation judge denied those claims, finding that the evidence failed to show that the employee had sustained a specific work injury on each of those dates. The employee also alleged his condition and inability to work were the result of a Gillette injury culminating on or about December 1, 1992, the last date he was employed by the Vikings. The compensation judge found the evidence supported this claim and awarded benefits.
A Gillette injury occurs when repetitive stress or trauma sustained by an employee as a part of the employee’s usual work activity results in disability. In Gillette v. Harold, Inc.,[8] our supreme court stated the principle underlying the compensable nature of such an injury as follows:
[I]njuries may arise out of and in the course of the employment which do not occur suddenly or violently. In the course of one’s ordinary duties injuries may occur daily which cause minimal damage, the cumulative effect of which in the ordinary course of time may be as injurious as a single traumatic occurrence which is completely disabling. We have been presented with no good reason why compensation should be paid in one instance and not in the other.
As we noted in Scharber v. Honeywell,[9]
by its very nature, a Gillette injury may develop so inconspicuously as to not demand, perhaps until as late as the injury’s culmination, the sort of close attention necessary to identify any clear pattern of association between “specific” activities and “specific” symptoms.
To establish a Gillette injury, an employee must “prove a causal connection between her ordinary work and ensuing disability,” a question that “primarily depends on medical evidence.”[10]
In the present case, the compensation judge expressly relied on the expert medical opinion of Dr. Misukanis. Both in his Neuropsychological Evaluation report and in testimony at the hearing below, Dr. Misukanis’ opinion[11] was that the employee’s dementia “is resulting from an assortment of factors,” among which was “a multitude of concussions/mild brain injuries incurred while playing professional football.” Dr. Misukanis’ testimony on cross-examination makes clear that his opinion was predicated on the overall total effect of concussions sustained by the employee throughout his football career, including during the seasons he played for other teams from 1993 until 1999, following his employment with the Vikings. However, to impose liability on this particular employer, the employee must present evidence specifically indicating that work activities during the years he spent playing for the Vikings (1988-1992) were a substantial contributing cause of his condition and claim. Nothing in Dr. Misukanis’ testimony discusses whether the work activities during the time playing for the Vikings were, in and of themselves, substantial contributing factors to the employee’s Gillette injury and disability.
We have reviewed and considered similar issues in previous claims against the Vikings. We have affirmed a compensation judge when substantial evidence supported the determination that the employee’s injuries while playing for the Vikings substantially contributed to the employee’s disability.[12] We have also affirmed the decision of the compensation judge where the judge concluded that the employee had failed to establish a connection between his disability and injuries sustained while playing for the Vikings.[13]
The medical evidence specifically supporting how work activities during the employment with the Minnesota Vikings resulted in the disability is unclear. The judge did not include an analysis of his reasoning on this issue. Given the lack of an explicit analysis of how the evidence supports the judge’s findings on this central question, we conclude we must vacate the compensation judges’ determination of a Gillette injury. We remand for further proceedings in accordance with this decision.[14]
The employer and insurer have appealed the compensation judge’s finding that the employer had actual knowledge of the employee’s Gillette injury so as to satisfy the requirements of Minn. Stat. § 176.141. The judge’s finding on this question is based on the determination of a Gillette injury culminating on December 1, 1992. Since we have vacated that determination for further consideration, we vacate this finding as well and request the compensation judge review this issue on remand.
The compensation judge found that the statute of limitations for the December 1, 1992, Gillette injury was tolled by the employer’s provision of medical care and treatment. This issue too must be considered in light of the proceedings on remand and we vacate the compensation judge’s finding on this question.
The March 2004 stipulation for settlement between the parties provided a full, final and complete settlement of “any and all claims the employee has, past, present, and/or future, for workers’ compensation benefits arising from” ten specific listed dates of injury. Among benefits closed out were permanent total disability and psychological care and treatment. The compensation judge found that the employee’s head injury, brain injury, and dementia claims were not closed out by the language of this stipulation.
The appellants argue that the judge erred, and that the stipulation closes out the employee’s current claims. First, they contend that the compensation judge should have concluded that the stipulation contemplated any claims for head trauma, brain injury, or dementia claims, on the basis that there was extrinsic evidence that the employee knew he had sustained concussions while playing for the Vikings when he signed the stipulation, and because the stipulation includes language closing out psychological and psychiatric care and treatment. Second, they argue that, even if the employee’s concussion injuries were not contemplated by the stipulation, it is not possible for him to be awarded permanent total disability benefits where the stipulation closes out permanent total disability on a full, final and complete basis, as the close out in the stipulation effectively exhausts the future availability of that benefit.
The compensation judge concluded that, as the stipulation listed specific dates of orthopedic injuries, and did not include any dates or injury claims that the employee was currently raising, it did not close out the current claims. The judge cited on Sweep v. Hanson Silo Co.[15] for the proposition that a stipulation may only cover claims specifically mentioned in the agreement. In the recent case of Ryan v. Potlatch Corp., our supreme court reviewed the Sweep decision and explained that its holding affirmed the determination that “a settlement agreement could not close out other distinct, work-related injuries not at issue in the claim petition and, therefore, not in dispute at the time of the agreement.”[16] Since the compensation judge applied the holding in Sweep and Ryan correctly, we affirm the determination that the employee’s current claims are not directly barred by the stipulation.
We do not accept the appellants’ argument that the stipulation’s close out of permanent total disability for the specific listed injuries in the stipulation has any effect on an award of permanent total disability here. What was closed out was not the general benefit of permanent total disability from any condition, but only permanent total disability that might arise as a result of the specific listed conditions. To rule otherwise would in essence apply portions of the stipulation to close out certain benefits for injuries not specifically closed out in it – a result directly contrary to the holding in Sweep.
[1] Gillette v. Harold, Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960).
[2] The employee testified that he believed the blackouts were caused by the pain pills he was prescribed, and that after he stopped taking the pain pills, the blackouts also stopped. See Transcript at 73-74.
[3] The employee has macular degeneration. There is no claim that the macular degeneration was caused by football.
[4] Minn. Stat. § 176.421, subd. 1(3).
[5] Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).
[6] Id. at 60, 37 W.C.D. at 240.
[7] Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).
[8] 257 Minn. 313, 101 N.W.2d 200, 206, 21 W.C.D. 105, 113 (1960).
[9] Slip op. (W.C.C.A. May 22, 2000).
[10] Steffen v. Target Stores, 517 N.W.2d 579, 581, 50 W.C.D. 464, 467 (Minn. 1994); Marose v. Maislin Transport, 413 N.W.2d 507, 512, 40 W.C.D. 175, 182 (Minn. 1987).
[11] See Exh. E at 15; T. at 141.
[12] Williams v. Minn. Vikings Football Club, No. WC56-5924 (W.C.C.A. July 12, 2016).
[13] Greer v. Minn. Vikings Football Club, No. WC14-5693 (W.C.C.A. Sept. 30, 2014).
[14] As briefed by the Appellants here, the question of when the employee as a reasonable person should have recognized the nature, seriousness, and probable compensable character of the condition is a key issue in this matter. Also raised by the appellants as a key issue is the date when the disablement began. In light of evidence indicating that medical science has only recently drawn a connection between head trauma and the latent onset of dementia, we ask the compensation judge to review and consider dates raised by the appellants and respondents.
[15] 391 N.W.2d 817, 39 W.C.D. 51 (Minn. 1986).
[16] 882 N.W.2d 220, 224, 76 W.C.D.491, 497 (Minn. 2016).