NOTICE OF INJURY – GILLETTE INJURY. Substantial evidence supports the compensation judge’s conclusion that the employer had sufficient knowledge of the employee’s injury within the statutory notice requirements.
WEEKLY WAGE – CALCULATION. The compensation judge did not err in including payment for sick leave the employee earned and received when unable to work for a non-work-related condition in calculating his weekly wage.
Compensation Judge: Kirsten Tate
Attorneys: Gary Manka, Katz & Manka, Ltd., Minnetonka, Minnesota, for the Respondent. Mark A. Kleinschmidt, Cousineau, Waldhauser, Kieselbach, P.A., Mendota Heights, Minnesota, for the Appellants.
DAVID A. STOFFERAHN, Judge
The employer and insurer appeal from the compensation judge’s determination that the employee gave timely notice of his work injury as required by the statute and from the compensation judge’s average weekly wage determination. We affirm.
The employee, Donald Goodrich, began working for the employer, Centerpoint Energy, in 2008. He passed a pre-employment physical examination. Initially, Mr. Goodrich made service calls on residential customers for furnaces and air conditioning maintenance and repair. His work was later expanded to include residential service calls for washers, dryers, and other household appliances. These assignments required crawling, bending, and twisting to access confined spaces to reach pipes and appliances, as well as lifting and moving of appliances. According to the job description from the employer, lifting 75 pounds on a regular basis was required. Mr. Goodrich’s job also involved significant mandatory overtime; his employment records showed more than 500 hours of overtime in 2013-2014. Wage records introduced by the employer at hearing showed that 45 percent of the employee’s pay in 2014 was overtime pay.
The employee received intermittent chiropractic care beginning in 2014. He began treating with Dr. Stephen Kramer, a chiropractor, on March 23, 2015, with complaints of low back pain. An MRI scan was done on April 1, 2015, which was read as showing multilevel degenerative disc disease and Schmorl’s nodes. A physician’s statement dated June 13, 2015, was faxed to “Rosie” at Centerpoint, who the employee identified as a human resources representative at the corporate office. In the statement, Dr. Kramer limited the employee to lifting no more than 50 pounds and restricted him from working overtime. The employee discussed these limits and restrictions with his immediate supervisor, Alicia Ellis, and with Rosie. The employee testified at the hearing that, “I told Alicia that my job was creating these job issues, that it was too strenuous on my back.” (T. 120.) He was told that if he could not lift 75 pounds, he would not be able to continue working for Centerpoint. A subsequent physician’s statement dated June 21, 2015, allowed the employee to lift up to 75 pounds.
The employee continued to experience low back pain that worsened after working. In 2018, one of his customers on a service call told the employee that he should see Dr. Bruce Bartie. The employee saw Dr. Bartie in September 2018. In a report dated November 29, 2018, Dr. Bartie stated that the employee’s work at Centerpoint had aggravated the employee’s “underlying preexisting degenerative condition.” The employee filed a claim petition on February 11, 2019. The employer and its insurer denied liability and this matter proceeded to a hearing on November 4, 2019.
In her Findings and Order issued on December 26, 2019, the compensation judge concluded that the employee sustained a work-related aggravation of his underlying lumbar spine degenerative disc disease which culminated on March 23, 2015. (Finding 21.) The compensation judge found the employee had provided timely notice of his injury to the employer. (Finding 22.) The compensation judge determined the employee’s average weekly wage on the date of injury to be $2,264.89. (Finding 23.) Benefits were awarded to the employee based on these findings. The employer and insurer appeal the issues of wage and 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(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).
An employee is required to provide notice to an employer of a work injury unless the employer has actual knowledge of the injury. Failure to provide notice within 180 days of the injury may preclude a claim for workers’ compensation benefits. Minn. Stat. § 176.141. For a Gillette injury, the notice period begins when the employee should have reasonably known that he or she suffered a compensable injury. Metters v. Nw. Airlines, No. WC05-150 (W.C.C.A. Aug. 17, 2005). The parties in this case agreed that the culmination date of the employee’s claimed Gillette injury to his back was March 23, 2015, the date the employee first saw Dr. Kramer and the date the employee stopped working overtime. The issue for the compensation judge’s determination was whether the employer received notice or had actual knowledge of the injury within 180 days of that date. The issue for this court on appeal is whether substantial evidence supports that determination.
The issue of notice was considered in Anderson v. Frontier Commc’ns, 819 N.W.2d 143, 72 W.C.D. 417 (Minn. 2012). In that decision, the supreme court barred the employee’s claim, holding that the lack of a medical report providing a causal relationship between the employment and an injury does not mean that the causal relationship was not reasonably apparent to an employee. Instead, the time for giving notice begins when it is “reasonably apparent” to the employee that he or she has sustained a compensable injury. Id. at 147, 72 W.C.D. at 423. The court also held that the issue of whether an employee complied with the notice statute is a question of fact for the compensation judge.
In considering the issue of notice, we are guided by Minn. Stat. § 176.001, which requires that the workers’ compensation statute be applied on an even-handed basis, favoring neither the employee nor the employer. The Anderson court held that an employee has an obligation to provide notice to the employer when it is reasonably apparent to the employee that there has been a compensable injury. Similarly, when it is reasonably apparent to the employee’s supervisor or to a human resource professional that the employee is reporting a work injury, the employer has received notice of an injury as required by the statute.
In the case at hand, Mr. Goodrich testified that, “So Alicia, on the day of -- I think it was the 23rd of March, 2015, I told her that here are my chiropractor’s restrictions, and he pretty much tells me that my job duties are not good for my back and that I need to stop working all overtime, mandated overtime, any overtime, volunteer or anything.” (T. 85.) The employee provided physician statements affirming that his back problems were the result of his job. This conversation between the employee and the employer representative, and the employee’s provision of the written restrictions, was sufficient notice of a work injury to the employer. The employer and insurer argue that the employee should have known he had a reportable work injury, yet acknowledge the employee reported exactly what he was told by his chiropractor. If what the employee was told by the chiropractor was sufficient to give him reason to report a work injury, then the reporting to the employer exactly what he was told by the chiropractor was equally sufficient notice to the employer.
The precise date of the employee’s meeting with his immediate supervisor and the corporate human resources representative is not in the record. However, the employer indicated that the employee would be out of a job with a 50-pound lifting restriction, so that meeting must have occurred prior to June 21, 2015, when Dr. Kramer reduced the employee’s restrictions. He stopped working overtime because of these issues. We conclude the employer had actual knowledge of the employee’s compensable injury well within the statutory requirement. The employer and insurer presented no evidence disputing the employee’s testimony and exhibits. We find substantial evidence supports the compensation judge’s factual finding on notice and her decision is affirmed.
The employer and insurer appeal from the compensation judge’s determination of the employee’s average weekly wage. Because the employee’s hours varied and included significant overtime pay, both parties introduced wage records at the hearing and argued for a wage that they claimed was based on the employee’s earnings in the 26 weeks preceding the injury. Relying on their respective wage exhibits, the employee claimed a weekly wage of $2,264.89, and the employer alleged a weekly wage of $2,030.85.
While both parties introduced wage exhibits, neither party offered any testimony or other evidence to explain these exhibits or their respective weekly wage calculations. The record shows at least 26 different sources of compensation for the employee, including regular pay, vacation pay, sick pay, FMLA sick pay, supplemental pay, shift premium pay, and LTD taxable income. In addition, although each exhibit purported to show wages on a biweekly basis for the 26 weeks prior to March 23, 2015, the employee’s exhibit begins with the pay period ending October 5, 2014, and ends with a pay period ending March 22, 2015. The employer’s exhibit begins with a pay period ending September 26, 2014, and ends with the pay period ending March 13, 2015. That discrepancy is not addressed by the parties. The employer and insurer’s argument on appeal is that the compensation judge erred in including the employee’s sick pay in the calculation of the weekly wage. However, excluding sick pay paid to the employee does not result in the wage alleged by the employer and insurer. Neither at trial nor on appeal have the employer and insurer explained how their alleged wage was calculated.
“The primary object of wage calculation is to arrive at a fair approximation of the employee’s probable future earning power which has been impaired or destroyed because of injury.” Knotz v. Viking Carpet, 361 N.W.2d 872, 874, 37 W.C.D. 452, 455 (Minn. 1985). The employer argues that Minn. Stat. § 176.011 should be strictly construed, and since sick leave was not specifically mentioned in the statute, it may not be included in a calculation of an employee’s wage. We disagree. Payment for sick leave is compensation an employee has earned and receives when the employee is unable to work for a non-work-related condition. It is part of the earning power referenced in Knotz and the compensation judge properly included it in the employee’s average weekly wage calculation. We conclude the compensation judge’s finding on this issue is supported by the statute and the evidence submitted by the parties, and the decision is affirmed.