CHERYL (OSTROVIAK) CLARK, Employee/Appellant,
v.
MESABA AVIATION, INC., and AMERICAN MOTORIST INS./KEMPER NAT'L INS. CO., Employer-Insurer.
Minnesota Workers Compensation
Workers' Compensation Court of Appeals
November 30, 2000
HEADNOTES
NOTICE
OF INJURY - SUBSTANTIAL EVIDENCE. Where both the
employee and her treating physician denied the employee had
sustained any work-related injury until well after the 180
day notice period, the compensation judge reasonably found
the employer did not have, within that time period, knowledge
of such information as would put a reasonable person on
inquiry, and that the employee failed to give timely
statutory notice of her personal injuries.
Affirmed.
Determined by: Johnson, J., Wheeler, C.J., and Rykken, J.
Compensation Judge: Jeanne E. Knight
OPINION
THOMAS
L. JOHNSON, Judge
The
employee appeals the compensation judge's finding that
she failed to give the employer statutory notice of her June
29, 1997 and August 6, 1997 injuries. The employee
further appeals the compensation judge's denial of her
claim for wage loss benefits from November 1, 1997 through
October 26, 1998 and from the judge's denial of payment
for an MRI scan. We affirm.
BACKGROUND
Cheryl
(Ostroviak) Clark, the employee, was hired by Mesaba
Aviation, Inc., the employer, on May 15, 1995, as a flight
attendant. The employee had a pre-employment physical at
the Airport Medical Clinic on May 2, 1995, and was medically
recommended for the position of a flight
attendant. (Pet. Ex. C-10.) Initially, the employee
flew in smaller turboprop airplanes. (T. 22.)
The
employee was off work from January 24 through May 1, 1997 due
to a non-work knee injury. (T. 83, 98.) Shortly
after her return, in June 1997, the employee began training
on a 70-seat jet. On or about June 29, 1997, the
employee was in Rochester, Minnesota, performing in-flight
training consisting of take-off and landings followed by an
emergency evacuation procedure. After the jet landed,
the emergency door slides were deployed to practice an
emergency exit. The flight attendants role-played
assisting passengers jumping from the plane. Then each
flight attendant exited the plane down the rubber
slide. The employee testified when she landed on the
ground at the end of the emergency slide, she felt a jolt on
the right side of her neck. At the end of the practice,
the employee went home. (T. 27-29.) She did not
fill out an injury report or submit one to her supervisor
although the employee knew the employer had a policy for
reporting work injuries. (T. 30.)
On June
30, 1997, the employee saw Dr. Severseike at the Fairview
EdenCenter Clinic. The doctor recorded a history of
"a lump in the right side of her neck for about six
months. Also some pain in the neck when she moves her
head. She thinks she might have possibly had a neck
strain or whiplash type of thing from riding a snowmobile
this winter and this could possibly be it." (Pet.
Ex. C-12.) The employee did not tell the doctor about
the emergency slide incident the day before. (T.
84.) On examination, Dr. Severseike palpated a
"very tiny pea sized or smaller nodule along the border
of the sternocleidomastoid muscle on the right side. It
does appear to be slightly tender as well." The
doctor recommended the employee be rechecked in a
month. (Pet. Ex. C-12.) The employee returned to
the clinic on July 18, 1997 and saw Dr. John Juola. The
employee complained of increased pain in her right neck and
low back pain, but denied any injury. On examination,
Dr. Juola found a tender mass in the right lateral neck,
decreased range of cervical motion and low back
tenderness. (Pet. Ex. C-12.)
On July
24, 1997, the employee was examined by Dr. John E. Sherman,
an orthopedic surgeon, at the request of Dr. Juola. Dr.
Sherman recorded that approximately three months previously,
the employee noticed a lump in the right side of her neck
with neck pain and minimal pain in the right
trapezius. The employee complained of daily neck pain
and pain on rotation of her head. An MRI scan of the
cervical spine showed a small to moderate left sided C5-6
herniated disc with secondary mild cord deformity and mild
central canal stenosis. Dr. Sherman concluded the lump
in the employee's neck was a lymph node. He opined
the employee's pain might be due to the C5-6 degenerative
changes. Dr. Sherman recommended physical therapy and
anti-inflammatory medication as needed. (Pet. Ex. C-9.)
On
August 6, 1997, the employee worked on a Mesaba flight to
Cincinnati.1 The flight was turbulent and the
captain instructed the flight staff to secure the galley
early. The employee was walking down the aisle preparing
to return to her seat when the plane hit turbulence which
caused her to strike her head on the ceiling of the
plane. She fell, landing on her tailbone on the arm of a
seat, and experienced a total inability to turn her head to
the left or the right due to pain. The employee did not
report this incident to her supervisors or prepare an injury
report although she was aware of workers'
compensation. The employee felt it was a
"negative" to be off work due to an
injury. The employee completed the return flight from
Cincinnati the next day, and did not return to work for the
employer thereafter. (T. 35-41.)
On
August 6, 1997, the employee returned to see Dr. Juola
complaining of...
