Anderson v. Frontier Commc'ns , No. A11–0834.

• Decision Date: 10 August 2012
• Docket Number: No. A11–0834.
• Parties: Karl L. ANDERSON, Respondent, v. FRONTIER COMMUNICATIONS and CNA/American Casualty Company of Reading, PA, Relators, and Twin Cities Spine Center, Intervenor.
• Court: Minnesota Supreme Court

819 N.W.2d 143

Karl L. ANDERSON, Respondent,

v. FRONTIER COMMUNICATIONS and CNA/American Casualty Company of Reading, PA, Relators,andTwin Cities Spine Center, Intervenor.

No. A11–0834.

Supreme Court of Minnesota.

Aug. 10, 2012.

Syllabus by the Court

1. There was substantial evidentiary support in the record for the compensation judge's finding that the injured employee failed to give the employer timely notice of his work-related injury.

2. There was substantial evidentiary support in the record for the compensation judge's finding that the employer lacked actual knowledge of the work-related nature of the employee's injury.

DeAnna M. McCashin, Schoep & McCashin, Chtd., Alexandria, MN, for respondent.

Kenneth D. Nelson, Law Offices of Jeffrey A. Magnus, Edina, MN, for relators.

OPINION

ANDERSON, G. BARRY, Justice.

The issue presented in this case is whether respondent Karl L. Anderson is barred from receiving workers' compensation benefits because he failed to give timely notice to his employer of a work-related injury. A compensation judge found that Anderson was barred from receiving workers' compensation benefits because his written notice of injury, given nearly 2 years after Anderson's last day of work, was not timely and Anderson's employer, Frontier Communications, did not have actual knowledge that Anderson's back problems were work-related. The Workers' Compensation Court of Appeals reversed, concluding that a reasonable person in Anderson's position would not have known that his injury was compensable until Anderson's doctors provided written reports to Anderson's attorney establishing a relationship between Anderson's back problems and his job duties. We reverse.

From 1987 to 2007 Anderson worked for Frontier Communications as a lineman. Anderson's job entailed installing cable, repairing and replacing cable boxes, and maintaining and stringing overhead cable—a very physical job that required Anderson to lift as much as 100 pounds at a time. According to Anderson, the most strenuous part of his job was bending over to mark underground cables with small flags to guard against accidental damage to the cables from digging. Anderson testified that he went through 7,000 to 10,000 flags in a season.

Anderson had no back problems before joining Frontier in 1987. In 1996, Anderson asked his physician for a shot of Demerol, claiming his back hurt after a day of shoveling dirt at work. Anderson testified before the compensation judge that although he initially reported this to his physician as a work injury, he changed his mind after realizing that it would result in a workers' compensation claim. In 1998, Anderson hurt his low back getting out of his employer's truck, but again did not report this as a work injury.

Between 2004 and 2005, Anderson's back progressively worsened, with pain at the beltline and down his right leg. The pain was worse at the end of a work day and progressively worse during the work week. According to Anderson, nearly anything he did seemed to increase his back pain and he gave up playing sports. Anderson did not initially seek medical treatment, figuring he was just getting old. By March 2007 Anderson was icing his back nightly. Anderson saw his physician for the problem; x-rays showed degenerative changes in Anderson's low back and wrist. He was referred for cortisone shots, which provided no relief; Anderson was then referred to a spinal surgeon. Anderson agreed that by April 2007 he knew that the work activities that he was doing at Frontier Communications were aggravating his low back.

In May 2007 the surgeon diagnosed Anderson with spondylolisthesis, spinal stenosis, and degenerative disc disease. Anderson's medical records reflect that Anderson's job was discussed at the initial consultation. In testimony before the compensation judge, Anderson further agreed that after talking with the surgeon in May 2007, he knew that the work activities were a cause of his low back problems or were aggravating his low back problems. Indeed, Anderson testified:

[A]fter I saw the first x-rays and the MRI's and the results and how much damage was done to my back, and they explained that everytime I bent over that there was two and a half centimeters of travel in my spinal cord, I mean in my back, and that it was pinching my spinal cord, that's when I realized from all the stooping and bending that I'd been doing all these years that my discs were wore out and they had to be replaced.

But Anderson's surgeon did not place any restrictions on Anderson's work during the time period between the surgical consultation and the surgery itself.

Anderson told his supervisor at Frontier Communications in June 2007 that he needed to take time off for low-back surgery, but did not tell anyone at Frontier that his back condition related to his work. Anderson's last day of work was July 4, 2007. In testimony before the compensation judge, Anderson agreed that he knew by July 4th of 2007 that his low back was aggravated by his work activities at Frontier Communications. On July 6, 2007, the surgeon performed an anterior discectomy and fusion. Anderson had additional surgery a week later for compression of the nerve root and again in February 2008 to redo part of the spinal fusion. Despite the surgeries, Anderson continues to have pain in his left leg and hip. He has trouble standing, sitting, and walking for more than a few minutes, and has not worked since July 4, 2007.

Anderson received short-term disability benefits for 90 days through his union and long-term disability benefits after 90 days. The long-term disability policy required Anderson to apply for social security disability insurance (SSDI) benefits, which were initially denied. In March 2009 the Social Security Administration found Anderson disabled as of July 4, 2007, his last day of work, and awarded Anderson benefits retroactive to January 2008. Anderson received a lump-sum SSDI payment, from which the long-term disability insurer demanded reimbursement for benefits paid under the long-term disability policy. Anderson consulted an attorney for help with the insurer's demand and eventually repaid the long-term disability insurer.

In April 2009 Anderson's attorney wrote to his physicians, asking whether the long-term physical demands of Anderson's job were a contributing factor to Anderson's need for surgery and medical treatment. Anderson's family doctor and his surgeon each responded that the physical demands of Anderson's job had significantly aggravated Anderson's pre-existing back condition. In May 2009, nearly two years after Anderson's last day of work, Anderson's attorney gave Frontier written notice that Anderson was claiming his back injury was work-related.

For an employee to receive workers' compensation benefits, and subject to several exceptions not applicable here, Minn.Stat. § 176.141 (2010) requires either that the employee give written notice of injury to the employer, or that the employer have actual knowledge of the injury, within 180 days of the occurrence of the injury. Nevertheless, we have held that the notice period under section 176.141 may be tolled until “it becomes reasonably apparent to the employee that the injury has resulted in, or is likely to cause, a compensable disability.” Issacson v. Minnetonka, Inc., 411 N.W.2d 865, 867 (Minn.1987). Put another way, “[t]he time period for notice or claim does not begin to run until the claimant, as a reasonable person, should recognize the nature, seriousness and probable compensable character of his injury or disease.” Id. (quoting 3 A. Larson, The Law of Workmen's Compensation § 78.41(a) (1983)); ¹cf. Jones v. Thermo King, 461 N.W.2d 915, 917 (Minn.1990) (observing “that for both personal injury and occupational disease, the statute of limitations begins to run when the employee has sufficient information of the nature of the injury or disease, its seriousness, and probable compensability”).

A compensation judge found that Anderson had sustained a Gillette-type injury arising out of and in the course of his employment, culminating on Anderson's last day of work. See Gillette v. Harold, Inc., 257 Minn. 313, 320–22, 101 N.W.2d 200, 205–06 (1960) (holding that when a preexisting infirmity is aggravated by repetitive minute trauma as a result of the ordinary and necessary duties of employment, the disability resulting from such aggravation is compensable as a personal injury under the workers' compensation statute). The compensation judge found, as Anderson had testified, that Anderson knew in April 2007 “that his work aggravated his low back.” The compensation judge further found that Anderson, after talking to the surgeon, “knew the work aggravated or caused the low back problem.” Although Anderson did not recall talking to either of his doctors “about work causing or aggravating his problem,” the compensation judge found that Anderson “assumed that it did” and that from April 2007 on, Anderson “assumed ... that the work caused or aggravated his problem.” Based on a preponderance of the evidence, the compensation judge found that Anderson had not given his employer timely notice of his claimed work injury. The compensation judge further found that Anderson had not established that his employer had “inquiry notice” of Anderson's injury as of July 4, 2007, Anderson's last day of work.² The compensation judge therefore denied Anderson's claim for workers' compensation benefits.

The Workers' Compensation Court of Appeals (WCCA) reversed the denial of benefits. Anderson v. Frontier Commc'ns, 2011 WL 1739771 (Minn. WCCA Apr. 11, 2011). The WCCA noted that the medical records of Anderson's initial visit to his family physician in March 2007 made no mention of Anderson's work. Id. at *2. The WCCA further noted that Anderson's surgeon placed no restrictions on Anderson, and Anderson continued to work until just a couple of days before his back surgery. Id. The...