ALAPATI NOGA, Employee/Respondent, v. MINN. VIKINGS FOOTBALL CLUB and TRAVELERS GROUP, Employer-Insurer, and MINN. VIKINGS FOOTBALL CLUB and MINN. ASSIGNED RISK PLAN, ADMIN’D BY BERKLEY RISK ADM’RS CO., LLC, Employer-Insurer/Appellants, and SPECIAL COMP. FUND.

The employer and insurer^[1] appeal from the compensation judge’s findings on remand that the employee sustained a Gillette^[2] injury culminating on December 1, 1992, as a substantial result of concussion injuries sustained during his employment; that the employer and insurer had sufficient statutory notice of the injury; and that the employee’s claim is not barred by the statute of limitations. We affirm.

The employee, Alapati Noga, started playing school football in the ninth grade. He continued playing through junior high and high school; subsequently, he was given a football scholarship to attend the University of Hawaii and played college football there for four years before being drafted by the Minnesota Vikings in 1988. He played for the Vikings from July 28, 1988, when he reported to training camp, through the 1992 season, after which his contract was not renewed and he became a free agent. He was then hired by the Washington Redskins and played a single season for that team in 1993. In 1994, he was picked up in midseason by the Indianapolis Colts. After playing about eight games with the Colts, the employee went from the NFL to play for teams in the Arena Football League until he retired from professional football in 1999.

At all times during his professional football career, the employee played as a defensive lineman. He testified that because he was considered undersized as compared to other defensive lineman, he used his speed and quickness to compensate. He also tackled by leading with the head instead of the shoulder, a method that was allowed in the NFL at that time. The employee testified that he began to experience headaches playing football in high school, which he associated with his “violent style of play” delivering impacts against other players with his head. These headaches continued to worsen through college football.

While employed by the Vikings, he similarly continued to experience headaches and dizziness after tackling in this manner during games and practice. At times, he reported these symptoms to the trainer, Fred Zamberletti, or to the team doctor, Dr. David Fischer, explaining that he was “feeling woosy [sic] from whatever hit that I made or whoever had hit me before, that play before.” (2016 T. 64.) He typically was provided with Advil or Tylenol; occasionally the training staff gave him a blanket and told him to rest in the training room. He testified that he was told to “fight through it” and that if he could not handle it, he would be taken out of the game, an outcome which he strove to avoid. At other times, the employee did not report headache symptoms during play as he believed that doing so might adversely affect his long-term prospects for employment as a professional football player.

After his contract ended with the Vikings, the employee continued to experience hits to the head during tackles and blocks while playing for the Redskins and the Colts, and then while playing in the Arena Football League. He continued to experience headaches and nausea and again 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.

In 2001, the employee filed a claim petition in Minnesota for workers’ compensation benefits associated with a number of specific orthopedic injuries. The orthopedic injuries were the subject of a stipulated settlement, and an Award on Stipulation was served and filed on March 23, 2004. Attached to the stipulation was a February 17, 2004, report by Dr. William Fruean, M.D. Dr. Fruean’s very brief report stated that he had examined the employee in December 2003 for a list of twelve complaints which the employee primarily attributed to injuries sustained playing football for the Vikings. Among these complaints were blackout episodes “from concussions from football injuries” and headaches “from football injuries.” Dr. Fruean recommended that the employee undergo evaluation by an orthopedic surgeon for his physical complaints. He also recommended that the employee “. . . be evaluated by a neurologist for his blackout and headaches problems.”

The employee was seen by Dr. James Pearce, M.D., at the Straub Clinic for a neurology consultation on October 1, 2007. In addition to other conditions, relating to the low back and upper extremities, the employee complained of headaches and disturbances to balance and memory. Dr. Pearce recommended an MRI of the brain. An MRI of the employee’s brain was performed on January 19, 2008. The scan revealed mild cerebellar tonsillar ectopia but was otherwise normal.

The employee applied for social security disability benefits in the fall of 2007. In an appeal from an initial denial in 2008, he reported that his condition had changed for the worse since December 1, 2007, with worsened memory loss and vision, and increasing blackouts. In 2009, the employee was awarded social security disability based on findings that the employee had sustained numerous concussions and musculoskeletal injuries while playing football and had been left with very poor vision, being legally blind and unable to drive. The employee submitted an NFL player disability benefits application in June 2009, which was also accepted.

On February 14, 2011, the employee was seen for a neuropsychological consultation by Gayle Hostetter, a psychologist, at the request of his treating physician, who had referred the employee because of his memory problems which the employee worried might indicate the beginning of dementia. The employee reported 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. Dr. Hostetter opined that the employee’s intellectual functioning showed a general decline, meeting a diagnosis for a dementia. She noted that the etiology of the condition was not clearly indicated by the level of function, but considered that multiple head trauma was likely indicated as an important factor.

The employee treated with Dr. Laila Spina, Psy.D., at Pacific Neuropsychology Services for several years beginning in 2011, receiving individual therapy. 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.

On December 1, 2014, the employee was seen for a neuropsychological evaluation by Thomas M. Misukanis, Ph.D., a clinical neuropsychologist, at the request of his attorney. Dr. Misukanis interviewed the employee, administered a series of neuropsychological, academic and intellectual tests, and reviewed the employee’s pertinent medical records. He concluded that the employee met the standards for a diagnosis of Major Neurocognitive Impairment (dementia) under the criteria set out in DSM-5. He rated the employee with an 86.5 percent permanent partial disability. He further opined that the employee was not currently employable.

Dr. Misukanis 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. He explained that while “a single, uncomplicated concussion usually will resolve in weeks to months[,] the problem becomes [sic] when you have concussion on top of concussion on top of concussion, when you have repetitive injuries.” In such a situation, Dr. Misukanis explained, “the damage to the brain can be exponential . . . in time you use up the brain’s ability to heal from the concussions and you can be left with more permanent deficits.” (2016 T. 118.) Although acknowledging that the employee’s history of concussions during his football career 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 seen for 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.

The employee’s attorney served a claim petition on the employer and other parties by mail on January 15, 2015, seeking workers’ compensation benefits against the Vikings for the effects of several specific alleged head injuries and for a Gillette injury to the head. The claim petition was filed at the Minnesota Department of Labor & Industry on January 20, 2015. The Vikings offered a number of affirmative defenses, including a denial of primary liability as well as 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. While Dr. Ferneyhough agreed with the diagnosis of a major neurocognitive disorder, he disagreed with Dr. Misukanis with respect to causation. In his opinion, there was no evidence that the employee had experienced any concussions during his employment with the Vikings sufficient to cause significant neuropsychological sequelae and, accordingly, he concluded that the employee’s condition was not due to his employment by the Minnesota Vikings as a defensive lineman between 1988 and 1992. Dr. Ferneyhough attributed the employee’s condition primarily to other factors, including drug addiction, sleep deprivation, chronic pain, ADHD and vision problems. 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 matter came on for hearing on April 8, 2016, before a compensation judge at the Office of Administrative Hearings. Following the hearing, the judge found that the employee had not proven that he sustained an injury on any of seven specific dates alleged, finding that the evidence indicated that the employee had not played on any of those specific dates. However, the judge concluded that the employee’s testimony credibly showed that he had sustained multiple concussion injuries on unspecified dates while playing for the Vikings. He found that the employee had sustained a Gillette injury resulting in his subsequent dementia condition, culminating on the last day of his employment with the Vikings. The judge found that the Vikings had sufficient notice of the employee’s Gillette injury and that the statute of limitations had been met by medical treatment provided in the team’s locker room while the employee was employed by the Vikings. Finally, the judge found that the employee’s claims were not closed out by the 2004 stipulation for settlement.

The Vikings appealed the matter to this court in 2017. No cross-appeal was filed by the employee with respect to the denial of the individual concussion injuries alleged to have been sustained on specific dates. In an opinion filed on April 20, 2017, this court observed that while the employee’s medical expert had opined that the concussions sustained by the employee throughout his football career had substantially contributed to the employee’s dementia, that opinion was unclear with respect to whether the work activities specific to the employment with the Minnesota Vikings were in themselves substantial contributing factors to the disability.

Noting that the compensation judge had not provided an analysis of how the evidence supported the finding of a Gillette injury as against the Vikings, we vacated the compensation judges’ determination of a Gillette injury and remanded for further proceedings. We also requested that the judge make findings on two further issues: 1) when the employee as a reasonable person should have recognized the nature, seriousness, and probable compensable character of the injury; and 2) the date when the disablement began. In light of our vacation of the Gillette injury finding and other findings, we also vacated and remanded the finding that the notice requirements of Minn. Stat. § 176.141 were satisfied by actual knowledge by the employer of the employee’s injury and the finding that the statute of limitations for the December 1, 1992, Gillette injury was met by the employer’s provision of medical care and treatment in the form of aspirin and a place to rest. We affirmed the compensation judge’s determination that the 2004 stipulation did not foreclose the employee’s claims.

The hearing on remand was held on October 10, 2017. The judge relied on the record from the previous hearing along with new evidence in the form of the deposition testimony of Dr. Misukanis taken on October 4, 2017, and the deposition testimony of Dr. Ferneyhough taken on October 5, 2017. Dr. Misukanis testified that in his opinion the employee’s activities during the time spent playing for the Vikings had been a substantial contributing factor to the employee’s development of his neurocognitive difficulties. Dr. Ferneyhough, on the other hand, once again opined that there was no objective evidence to suggest that the employee sustained concussions during his employment with the Vikings. In his Findings and Order served and filed on December 11, 2017, the judge again found that the employee had sustained a Gillette injury as a substantial result of concussions sustained during his time playing for the Vikings. The judge further found that the Vikings had actual or inquiry notice of the employee’s injury no later than the date of Dr. Fruean’s report, which was attached to the parties’ 2004 stipulation for settlement. The remaining findings from the July 8, 2016, Findings and Order were incorporated by reference as Finding 1. 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.” 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 employee alleged that he had sustained a Gillette injury in the nature of head trauma, a brain injury and/or dementia, culminating on December 1, 1992. To establish a Gillette injury, an employee must prove a causal connection between ordinary work and disability. Steffen v. Target Stores, 517 N.W.2d 579, 50 W.C.D. 464 (Minn. 1994). “The question of a Gillette injury primarily depends on medical evidence.” Marose v. Maislin Transport, 413 N.W.2d 507, 512, 40 W.C.D. 175, 182 (Minn. 1987).

The compensation judge accepted as credible the employee’s testimony that he sustained multiple head injuries during his time playing for the Minnesota Vikings and describing the symptoms he experienced from those injuries. The judge expressly adopted the expert medical opinion of Dr. Misukanis, finding that the employee’s work activities with the employer are a substantial contributing factor to the employee’s permanent cognitive dysfunction.

The employer and insurer argue that the finding of a Gillette injury is unsupported by substantial evidence. They note that the records of the Vikings’ team physician and of the training room staff mention no reports of head injuries or concussions by the employee, and characterize the employee’s testimony as merely “self-serving.” Because Dr. Misukanis accepted the employee’s testimony regarding his head injuries and symptoms as the foundation for his expert opinion, the appellants contend that Dr. Misukanis’ opinion had an improper or insufficient foundation and that it accordingly fails to support the finding of a Gillette injury. The appellants suggest that the compensation judge should instead have accepted the opinion of their expert, Dr. Ferneyhough, who noted the absence of contemporary evidence corroborating the employee’s testimony and opined that the employee’s dementia condition and related symptomology did not result from the employee’s activities during his employment with the Vikings.

The common thread underlying these arguments is the contention that the employee’s testimony was not credible in the absence of corroboration. The assessment of witness credibility is the unique function of the trier of fact. Brennan v. Joseph G. Brennan, M.D., 425 N.W.2d 837, 839-40, 41 W.C.D. 79, 82 (Minn. 1988). It is not the role of this court to evaluate the credibility and probative value of witness testimony or to choose different inferences from the evidence than those made by the compensation judge. See Krotzer v. Browning-Ferris/Woodlake Sanitation Serv., 459 N.W.2d 509, 513, 43 W.C.D. 254, 260-61 (Minn. 1990); Redgate v. Sroga’s Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988). The judge expressly found the employee’s testimony credible. The absence of corroboration in various contemporary records kept by the Vikings or its physicians does not compel the conclusion that the judge’s reliance on the employee’s testimony was clearly erroneous.

As to the judge’s decision to accept the expert opinion of Dr. Misukanis over that of Dr. Ferneyhough, we note that it is the role of the compensation judge to resolve conflicts in expert medical testimony. The judge’s choice of expert opinion is generally upheld on appeal unless the facts assumed by the expert in rendering an opinion are insufficient or not supported by the evidence. See, e.g., Smith v. Quebecor Printing Co., 63 W.C.D. 566 (W.C.C.A. 2003).

We conclude that substantial evidence supports the compensation judge’s finding that the employee’s work activities while playing for the Vikings, in the form of repeated head injuries, were a substantial contributing factor to the claimed Gillette injury. We therefore affirm the finding of a Gillette injury.

The judge set the date of culmination of the Gillette injury at December 1, 1992, the last day the employee worked for the employer. The appellants contend that the compensation judge erred as a matter of law in making this determination, noting that, as of that date, there was no evidence of any restrictions, lost time from work, or modifications to job duties, and that the employee was able to continue playing professional football for seven more years afterwards. They argue that it was improper to find culmination of a Gillette injury absent clear evidence of an “ultimate breakdown” and suggest that the employee’s Gillette injury logically culminated no earlier than 1999 when his football career ended.

Based on this date of culmination argument, they further contend that the finding of primary liability against the Vikings is inappropriate, and that liability should be borne by the last team for which the employee played during his time in the Arena Football League. In Michels v. American Hoist & Derrick, 269 N.W.2d 57, 31 W.C.D. 55 (Minn. 1978), the Minnesota Supreme Court held that equitable apportionment of liability for a single Gillette injury is inappropriate absent almost uncontroverted medical testimony that permits a precise allocation of responsibility. Pursuant to that decision, liability for a Gillette injury generally is held to rest with the employer and insurer on the risk on the date of disablement, so long as the duties of that employment were also substantial contributing factors to the Gillette process. This rule, however, is essentially one of apportionment, and is not a defense to primary liability. Here, however, none of the employee’s subsequent employers were parties to the case, and there was and is no issue of apportionment to resolve.

The compensation judge found that the work activities the employee performed while employed by the Vikings were a substantial contributing cause of the employee’s Gillette injury, and we have affirmed that finding. The primary liability of the Vikings is therefore established. Certainly, there is expert medical opinion in the record indicating that the employee’s activities playing football for other teams also contributed to his condition; however, as our supreme court has noted, “it is not necessary . . . for the employee to show that the work-related injury was the sole cause of the disability. It is only necessary to show that the injury was a legal cause, that is, an appreciable or substantial contributing cause.” Salmon v. Wheelabrator Frye, 409 N.W.2d 495, 497-98, 40 W.C.D. 117, 122 (Minn. 1987) (citing Roman v. Minneapolis St. Ry. Co., 268 Minn. 367, 129 N.W.2d 550, 23 W.C.D. 573 (1964)).

We also conclude that the compensation judge did not err as a matter of law in setting the date of culmination at the last date worked for the employer. In Schnurrer v. Hoerner-Waldorf, 345 N.W.2d 230, 233, 36 W.C.D. 504, 508 (Minn. 1984), the supreme court noted that a variety of “ascertainable events” may be present in a case and that the date when the employee might be deemed to have sustained the injury “should be determined on all the evidence bearing on that issue.” A finding as to the time of a Gillette injury is one of fact for the compensation judge, and this court has generally affirmed the compensation judge when that determination is based on substantial evidence. Cramer v. United Parcel Servs., 72 W.C.D. 519 (W.C.C.A. 2012); Furey v. Grand Itasca Clinic & Hosp., No. WC06-207 (W.C.C.A. Dec. 5, 2006); Pettis v. Metal Matic, slip op. (W.C.C.A. Jan. 18, 2000).

In several previous cases, we have affirmed a compensation judge’s selection of the last day of work for an employer as the date of culmination for a Gillette injury despite the fact that disability from work had not yet occurred. As we noted in Yates v. Muller Logging, Inc., No. WC06-210 (W.C.C.A. Jan. 3, 2007), the last day of work “was obviously the last day during which the employee’s work activities could have contributed to his disability.” See also Wittstock v. McPhillips Bros. Roofing Co., 73 W.C.D. 1 (W.C.C.A. 2013). The culmination date determined for the employee’s Gillette injury was not clear error. We therefore affirm.

Minn. Stat. § 176.141 provides that no compensation for an injury shall be allowed unless the employer has actual knowledge of the occurrence of the injury or written notice is given to the employer within 180 days. The notice period, however, does not begin to run until it is reasonably apparent to the employee that an 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); Jones v. Thermo-King, 461 N.W.2d 915, 43 W.C.D. 458 (Minn. 1990). The date on which an employee has obtained sufficient knowledge to trigger the duty to give notice is a question of fact. Barcel v. Barrel Finish, 304 Minn. 536, 232 N.W.2d 13, 28 W.C.D. 4 (1975).

In his Findings and Order on remand, the compensation judge found that the employer had adequate notice of the employee’s Gillette injury. In his memorandum, the judge explained his reasoning as follows:

The appellants argue that it should have been reasonably apparent to the employee that he had sustained a compensable disability as a result of his work activities with the Vikings as early as the end of the 1992 football season, based on his testimony that he had experienced instances of headaches and nausea which he attributed to playing football. The appellants itemize in their brief numerous other possible subsequent dates through 2013 for which the evidence might indicate sufficient knowledge by the employee to trigger his duty to give notice. They argue that regardless of which of their suggested dates is selected, no notice was given by the employee until the filing of his claim petition in January 2015.

On review of the evidence, we conclude that substantial evidence supports the compensation judge’s finding that the employee became reasonably aware of the possibility of a compensable, work-related injury as of the issuance of the report of Dr. Fruean, who apparently was the first physician to recommend a diagnostic workup for the employee’s headache and blackout episodes as potential work-related injuries associated with his time playing football for the Minnesota Vikings. While there was as yet no clear diagnosis, and other, later dates might have been selected by the compensation judge, we cannot say that the selection of the date of Dr. Fruean’s report was clearly erroneous. We therefore affirm the judge’s conclusion that the employee was reasonably aware of the nature and probable compensable character of his Gillette injury, and that the statute of limitations began to run, as of the date of Dr. Fruean’s report on February 17, 2004.

The compensation judge further noted that Dr. Fruean’s report was attached to the Stipulation for Settlement signed on behalf of the Vikings in March 2004. Clearly, if the contents of that report were sufficient to place the employee on notice of the likelihood of a compensable claim, the same report was also sufficient to place the Vikings on notice of that potential claim. It is not necessary that an employee provide formal written notice; actual knowledge is sufficient. Actual knowledge is such information as would put a reasonable employer on inquiry that the employee’s disability is work related. Pojanowski v. Hart, 288 Minn. 77, 178 N.W.2d 913, 25 W.C.D. 206 (1970). Actual knowledge, also called “inquiry knowledge,” simply requires that an employer have information connecting the work activity with an injury. Greene v. W & W Generator Rebuilders, 302 Minn. 542, 224 N.W.2d 157, 27 W.C.D. 654 (1974).

As a general rule, an employee need only give notice of the injury itself and not of the specific details of the mechanism of injury or specific body parts affected. See, e.g., Runkel v. Univ. of Minn., 62 W.C.D. 302 (W.C.C.A. 2002); Mehle v. Oglebay Norton Taconite Co., 57 W.C.D. 336 (W.C.C.A. 1997); Hagy v. Morton Bldgs., Inc., 67 W.C.D. 573 (W.C.C.A. 2007). “The notice requirement is designed to enable the employer to furnish immediate medical attention in the hope of minimizing the seriousness of the injury as well as to protect the employer by permitting him to investigate the claim soon after the injury.” Sobczyk v. City of Duluth, 245 Minn. 569, 73 N.W.2d 795, 19 W.C.D. 263 (1955). What is significant is that in March 2004 the employer had actual knowledge of an alleged work-related condition, yielding the opportunity to conduct an investigation, obtain the employee’s medical records, and monitor his medical care.

Generally, the question of whether the facts known to the employer within the statutory notice period were sufficient to constitute actual knowledge is one of fact for the compensation judge. Mulholland v. Carl Erickson Trucking, slip op. (W.C.C.A. June 4, 1998). The compensation judge reasonably concluded that Dr. Fruean’s report provided the employer with such information concerning a potential condition resulting from the employee’s concussion injuries playing football as would put the employer on inquiry that the employee’s disability was work related. Accordingly, the compensation judge found that notice was timely provided in this case by actual knowledge.

The appellants argue that because the notice statute specifically relates to notice given to an employer, not the employer’s attorney or agent, the judge’s finding on this point was legally erroneous. While this distinction might be significant in assessing the adequacy of service of formal written notice under the statute, the issue here was one of imputed notice by actual knowledge. The manner by which an employer obtains actual knowledge is not dependent on specific forms of service. It was not unreasonable under the circumstances for the finder of fact to infer that the Vikings had here gained sufficient knowledge of the contents of Dr. Fruean’s report as would put a reasonable employer on inquiry that the employee had a potential work-related claim relating to concussions or head injuries. We accordingly affirm the finding of adequate notice.

The compensation judge determined that the employee’s claim for benefits from his Gillette injury was not barred by the statute of limitations. The appellants contest the compensation judge's determination, arguing that no action or proceeding to determine benefits had been timely commenced pursuant to the applicable statute of limitations, Minn. Stat. § 176.151, subd. 1.

Actions or “proceedings by an injured employee to determine or recover compensation” must be brought within “three years after the employer has made written report of the injury to the commissioner of the Department of Labor and Industry, but not to exceed six years from the date of the accident.” Minn. Stat. § 176.151, subd. 1. As with the period for providing notice, the time set for compliance with the statute of limitations does not begin to run until the employee has sufficient information of the nature of the injury or disease, its seriousness, and probable compensability. Cf., e.g., Jones v. Thermo-King, 461 N.W.2d 915, 43 W.C.D. 458 (Minn. 1990).

As discussed in the context of notice, the compensation judge implicitly found that such information was known to the employee as of the date of Dr. Fruean’s 2004 report. Since it is undisputed that the employee did not file his claim petition in this matter until January 2015, the appellants argue that this court should reverse the compensation judge and hold that the employee’s claim is barred by the statute of limitations.

It is well settled that when the employer assumes responsibility for the medical treatment of a workers’ compensation injury, that act may constitute a “proceeding” for the purposes of Minn. Stat. § 176.151. Livgard v. Cornelius Co., 308 Minn. 467, 243 N.W.2d 309, 28 W.C.D. 413 (Minn. 1976); Knopp v. Gutterman, 258 Minn. 33, 102 N.W.2d 689, 21 W.C.D. 195 (1960). Here, the compensation judge found that the provision of treatment by the Vikings’ training room staff for head traumas and concussions sustained by the employee while playing for the team was a “proceeding” initiated prior to the running of the statute of limitations.

In reaching this conclusion, the compensation judge accepted both the employee’s testimony about his reporting of symptoms to the training room staff or the team doctor following some of the head trauma and concussion injuries he sustained during his work activities and his testimony about the treatment that was provided for those symptoms. The employer and insurer contend that the compensation judge erred in relying on the employee’s otherwise uncorroborated testimony, particularly where the training room records do not describe such treatment. This is essentially a credibility question. We have already found the compensation judge’s reliance on the employee’s testimony was appropriate where it supported the finding of a Gillette injury. For similar reasons, we conclude that the employee’s testimony here is sufficient support for the judge’s factual findings describing the training room treatment provided by the employer for the employee’s head trauma and concussion symptoms.

The employee testified that the treatment provided consisted primarily of the provision of “Advil or Tylenol” and in providing the employee a place to lie down. The appellants argue that even if the training room treatment described in the employee’s testimony was provided, the compensation judge erred as a matter of law in concluding that the treatment was significant enough to constitute a “proceeding” meeting the requirements of the statute. They point out that in Livgard, the supreme court specifically held that the occasional provision of aspirin by a company nurse for an employee’s complaints of back, hip and leg pain did not constitute a “proceeding” which met the statute of limitations. The court there noted that, under the facts shown in that case, aspirin was dispensed by the company nurse “as a general service provided to all employees who suffer from minor ailments of whatever nature and origin.” There was no evidence to suggest that the employer had been provided with any information relating the employee’s symptoms to his work. The court held that, under those facts, there was no evidence that the treatment was provided “in response to a conscious sense of obligation for a work-related injury” so as to constitute a “proceeding” for the purposes of the limitations statute.

The appellants argue that, like the employer in Livgard, their purposes in providing training room treatment included assisting players with their daily afflictions. Thus, they argue, there was similarly no showing that the employer’s provision of treatment to the employee was the knowing treatment of a work-related injury. We note, however, that the compensation judge found that the training room treatment was rendered for concussions the employee sustained during blocks and tackles while playing professional football for the team. There was also expert medical evidence that the treatment provided was consistent with the protocol for such injuries at that time. In Meyers v. Minnesota Vikings Football Club, 67 W.C.D. 389, 402 (W.C.C.A. 2007), we affirmed a finding that training room splinting and taping of a wrist sprain was a “proceeding” which met the statute of limitations, noting that “the taping and splinting treatment furnished by the employer’s medical and training staff . . . was clearly specific to an injury very reasonably proceeding directly from the employee’s specific profession, and the injury’s treatment in that manner quite reasonably implies an admission of responsibility.”

We similarly conclude that, under the specific circumstances of this case, there is substantial support in the evidence for the compensation judge’s conclusion that the treatment provided, even though limited in scope, was sufficient to represent an acknowledgment of responsibility for a work injury.

The appellants assert, however, that even if the treatment rendered could be deemed a “proceeding” meeting the statute of limitations for incidents of concussion and head trauma, the employee’s claim should nonetheless be held time-barred because the claim awarded by the compensation judge was not for the concussions or head traumas sustained in these incidents, but for a different injury -- a Gillette injury that had not yet culminated at the time the treatment was rendered. They argue that the statute of limitations clearly cannot be met by a “proceeding” that took place prior to the occurrence of the Gillette injury.

We are not persuaded. First, we note that, as a practical matter, the culmination date set for a Gillette injury, in contradistinction to the date of a specific injury, will inevitably be later than some or all of the contributing traumatic events and their associated work activities. Significantly in this case, the judge found that the employee sustained concussions on unspecified dates while working for the Vikings, the effects of which contributed to the eventual culmination of a Gillette injury, although those specific concussion events were not found to be initially disabling and therefore compensable in their own right.

In Lofgren v. Pieper Farms, 540 N.W.2d 834, 836, 53 W.C.D. 464, 466 (Minn. 1995), the supreme court held that the statute of limitations begins to run only when the employee has sufficient knowledge of a disabling injury, rather than from the occurrence of the “accident,” stating:

In the present case, where the employee’s Gillette injury was found to be a direct result of the concussions sustained while playing for the Vikings and treated by the team’s training staff, we must conclude that the case before us more closely resembles in its material aspects the situation in Meyers than it does that presented in Livgard, despite the superficial similarities with respect to the modality of treatment. We conclude that substantial evidence supports the judge’s finding that the statute of limitations does not bar the employee’s claim.

The compensation judge’s award of benefits for the employee’s dementia condition caused by playing football required findings on three issues, all of which are affirmed by the majority: whether the employee suffered a Gillette injury in December 1992, whether the employee and the employer and insurer were on notice of the employee’s dementia condition, and whether the statute of limitations had been tolled. I concur with the majority that substantial evidence in the record supports the compensation judge’s finding with respect to the Gillette injury issue, but because the findings on the remaining two issues are erroneous as a matter of law and not supported by substantial evidence, I respectfully dissent.

First, the judge found that the 2004 report of Dr. Fruean, which was attached as an exhibit to a stipulation for settlement between the parties, was sufficient to put both the employee and the employer and insurer on notice of the employee’s dementia condition. I disagree. Dr. Fruean’s terse report merely mentions complaints of blackout episodes and headaches, and he recommends that the employee be evaluated by a neurologist for these issues. Both Drs. Ferneyhough and Misukanis testified that the report of Dr. Fruean was not sufficient to convey the severity of the employee’s disability at that time.^[3] Substantial evidence in the record does not support the compensation judge’s conclusion that Dr. Fruean’s report provided sufficient notice to the employee and the employer and insurer of the employee’s dementia condition as of 2004.^[4]

Furthermore, even if the report was enough to prompt the employee to be aware of a compensable claim, there is no evidence in the record that the employer received Dr. Fruean’s report. As a matter of practice, the workers’ compensation statute does not require a stipulation for settlement be provided to the employer, but only that the insurer convey to the employer the amount paid and the terms of the agreement within 30 days of approval. Minn. Stat. § 176.522. Certainly the statute does not require employers be provided exhibits to the agreement, which often contain confidential medical reports. Id.; see also Minn. Stat. § 176.521. This finding should be reversed and the issue of when the employee and the employer and insurer were on notice of the employee’s dementia condition should be remanded for further findings.

Second, the judge found that the statute of limitations was met sometime between 1988 and 1992 when the training staff provided the employee with Tylenol, ibuprofen, or a place to rest. I disagree with the majority’s affirmance of the judge’s conclusion that the furnishing of this treatment rises to the level of a “proceeding” under Minn. Stat. § 176.151. Rather, the facts of this case are analogous to those in Livgard, where the Minnesota Supreme Court rejected an argument that the furnishing of aspirin by the company nurse constituted a “proceeding,” and held that meeting the statute of limitations requires a “conscious sense of obligation” for the work injury, and thus, “an acceptance of liability.” As was recognized by the court in Livgard, many Minnesota employers provide first aid or medication for the relief of minor ailments. Some even offer an on-site occupational health nurse or physician to keep workers healthy and safe. Minnesota employers might interpret the majority decision as a requirement that they log every workers’ request for Tylenol or need to rest as “payment by the employer” of a workers’ compensation benefit even when there is no known injury. See Minn. Stat. § 176.151. This cannot be a result the majority intends.

Further, the judge’s finding that the statute of limitations was tolled before the injury occurred is flawed. It has long been held that the statute of limitations begins to run when the employee has sufficient knowledge of a disabling injury.^[5] Mr. Noga was not disabled between 1988 and 1992,^[6] and without a disabling injury, it was not possible for him to be aware that one existed and for the statute of limitations to begin to run. For these reasons, the judge erred in finding that the statute of limitations was met between 1988 and 1992.

I acknowledge the difficulty in trying, defending, and deciding this case under a Gillette theory. At the October 10, 2017, hearing on remand, counsel recognized that the facts in this matter could fall under an occupational disease analysis. However, due to procedural limitations, this court’s review is limited to the theory under which the case was tried below.

I join in the separate opinion of Judge Sundquist.