Supreme Court of Minnesota Hands Vikings, Insurers a Victory in Concussion Case

Sep 27, 2019

The Supreme Court of Minnesota has reversed a workers’ compensation judge, as well as a holding of the workers’ compensation court of appeals, and, instead, sided with the Minnesota Vikings and various insurance companies in a case in which a former NFL player sought compensation for the dementia he suffered, arising from head injuries and the painkillers he was prescribed.
In so ruling, the high court found that the claim was time-barred.
This case involves the 2015 workers’ compensation claim for benefits filed by Alapati Noga, a former defensive lineman for the Minnesota Vikings from 1988-92, who now suffers from dementia.
Noga was born in September 1965 in American Samoa and moved to Hawaii in 1969. Noga began playing football seriously in the ninth grade and played the position of defensive lineman throughout high school. He suffered at that time from what he called “headaches” because of his “violent” head-first style of playing. Throughout college, Noga continued playing as a defensive lineman with the same head-first style of play.
Before he completed his college degree, Noga was drafted by the Minnesota Vikings in the third round of the 1988 National Football League (NFL) draft. Noga played as a defensive lineman for the Vikings from 1988 until Dec. 1, 1992. Noga continued his head-first style of tackling other players, a style of play that was then allowed by the NFL.
While playing for the Vikings, Noga sustained a number of orthopedic injuries that kept him from playing games periodically, and also experienced head injuries and headaches. On occasions when Noga had a headache after sustaining a hit, he would talk to the team trainers and doctors, who would dispense Advil and Tylenol for his headaches.
Before the compensation judge, Noga testified that there was no way to keep his orthopedic injuries from the Vikings. But, regarding his head injuries, Noga “didn’t want to tell (Vikings staff) too much” because staff sometimes told him “you’re always hurting.” Noga testified that those statements made him feel that he should keep the head injuries to himself if he wanted to continue playing in the NFL.
Even when he experienced headaches and wooziness following a hit, Noga continued playing. Noga was “never taken out of the game right away” if he told the Vikings staff that he was feeling woozy from a hit or a play. When asked why he would continue playing if he was feeling woozy, Noga testified the doctors told him to “fight through it.”
Noga’s last day with the Vikings was Dec. 1, 1992. He went on to play briefly for the Washington Redskins and Indianapolis Colts as well as the Arena Football League until 1999.
In 2001, Noga filed a claim petition for workers’ compensation benefits regarding various orthopedic injuries he suffered while playing for the Vikings. In connection with this claim, Noga was examined by Dr. William Fruean in 2003. In February 2004, Dr. Fruean wrote a report summarizing Noga’s medical problems, which Noga attributed to “injuries while he was playing football for the Minnesota Vikings.” Dr. Fruean listed 10 orthopedic issues and two neurological issues: “Blackout episodes from concussions from football injuries” and “Headaches episodes, from football injuries.” Dr. Fruean also stated that Noga “needed to be evaluated by a neurologist for his blackout and headaches problems.” Noga’s 2001 claim was settled, and an Award on Stipulation, to which Fruean’s report was attached, was filed in March 2004.
Noga applied for social security disability benefits related to non-head injuries in September 2007. Although his claim was initially denied, Noga was diagnosed as legally blind in November 2008. On the basis of that diagnosis, in February 2009, the Social Security Administration determined that Noga met the medical requirements for disability benefits and that the onset of his disability was Nov. 17, 2008.
“In general, Noga’s medical and therapy records indicate numerous ongoing health problems, including chronic gout flare-ups, ongoing orthopedic issues, chronic pain, sporadic illicit drug abuse, sleep apnea, depression, legal blindness, and neurological issues,” wrote the court. “Noga saw multiple psychologists to address some of the mental health and neurological issues he was experiencing, including Dr. Gayle Hostetter and Dr. Laila Spina.”
In January 2011, after an “extensive” neuropsychological evaluation, Dr. Hostetter concluded that “Noga’s general intellectual functioning shows a general decline from previous functioning, with extremely low verbal memory and problem solving/ organization, meeting the diagnosis for . . . dementia.” Regarding causation, Dr. Hostetter indicated that “Noga’s performance does not clearly indicate etiology, although multiple head trauma certainly is indicated as an important factor.” Finally, Dr. Hostetter observed that “other contributing factors, such as possible under-reported substance abuse, untreated sleep apnea, and psychiatric/personality factors need to be further investigated.”
In December 2014, Noga was examined by Dr. Thomas Misukanis, a licensed psychologist and clinical neuropsychologist. In his report, Dr. Misukanis opined that “Noga’s cognitive deficits represent moderate brain impairment which is resulting from an assortment of factors including ADHD, having English as a second language (ESL), untreated sleep apnea, chronic physical pain, cannabis use, previous methamphetamine and alcohol abuse, psychological disturbance, and a multitude of concussions/mild brain injuries incurred while playing professional football.” Dr. Misukanis stated that “while (Noga’s) history of concussions is clearly not the sole cause of his brain impairment, it is my impression that they are a significantly contributing factor to Mr. Noga’s cognitive dysfunction.” Based on his evaluation of Noga, Dr. Misukanis opined that Noga “meets criteria for the DSM-5 diagnoses of Major Neurocognitive Impairment (formerly known as Dementia).”
Following this diagnosis, Noga filed the instant claim for workers’ compensation benefits in January 2015. In May 2015, at the request of the Vikings’ insurer, Dr. Stanley Ferneyhough conducted a neuropsychological examination of Noga. Dr. Ferneyhough found “Noga to be totally disabled from a neuropsychological standpoint from January 1, 2013 to the present and continuing.” Dr. Ferneyhough agreed with Dr. Misukanis’s diagnosis, but disagreed about the etiology of Noga’s dementia, attributing it to Noga’s past drug abuse and head trauma from a 2011 motor-vehicle accident. He further opined that “there is no causal relationship between Mr. Noga’s alleged consequential dementia claim and his playing time while a Minnesota Vikings football player between 1988 and 1992.”
A compensation judge held a hearing on April 8, 2016. The court ruled that Noga sustained a Gillette injury of “head trauma, brain injury, and/or dementia” that culminated “on or about December 1, 1992” and that the injury “is a substantial contributing factor to (his) permanent and total disability.” The compensation judge also found that Noga’s claim was not barred by the notice requirement under Minn. Stat. § 176.141 or the statute of limitations set forth in Minn. Stat. § 176.151.
The Vikings appealed, and in April 2017, the WCCA affirmed in part, vacated in part, and remanded in part. Noga v. Minn. Vikings Football Club, 77 Minn. Workers’ Comp. Dec. 285, 2017 MN Wrk. Comp. LEXIS 33 (WCCA 2017). First, noting that Noga must present evidence that his work activities for the Vikings from 1988 until 1992 “were a substantial contributing cause of his condition and claim.” Second, because the compensation judge’s finding that the Vikings had received notice of the Gillette injury that satisfied the requirements of Minn. Stat. § 176.141 was “based on the determination of the Gillette injury,” the WCCA also vacated the notice determination. Third, the WCCA addressed the compensation judge’s finding “that the statute of limitations for the December 1, 1992, Gillette injury was tolled by the employer’s provision of medical care and treatment.” Having determined that a remand was necessary on the first two issues, the WCCA vacated and remanded the statute-of-limitations issue as well.
In December 2017, the compensation judge issued his findings and order on remand, adopting the opinion of Dr. Misukanis regarding the “causal relationship between the employee’s work activity and his current condition” and his opinion that Noga’s work activities for the Vikings “are a substantial contributing factor to the employee’s permanent cognitive dysfunction.” The compensation judge also found that Noga had sustained a Gillette injury consisting of “head trauma, brain injury, and/or dementia” that culminated “on or about December 1, 1992, as a direct result of his work activities with the employer.”
Addressing the question of notice, the compensation judge stated, “it is well established that the notice period in Gillette cases starts to run when it has become reasonably apparent to the employee that the work injury has resulted in a compensable disability.” The compensation judge agreed with the Vikings that Noga could not give notice before the date of injury and that “it became reasonably apparent to the employee that he was suffering a disabling cognitive disability at least as of Dr. Freuan’s report of February 17, 2004.”
Addressing the statute of limitations, the compensation judge concluded, “case law is clear that an ‘action or proceeding’ tolls the statute of limitations. Case law is also clear that inconsequential medical services provided by an employer is not an action or proceeding but consequential medical treatment provided by an employer qualifies and tolls the statute.” The compensation judge, relying on Myers v. Minnesota Vikings Football Club, Inc., 67 Minn. Workers’ Comp. Dec. 389 (WCCA 2007), concluded that the care provided by the Vikings’ training staff qualified as an action or proceeding. The compensation judge found that Noga “credibly testified that he was given pills, given training room time to rest or sleep it off, and talked to Dr. Fischer and Trainer Fred Zamberletti and was told he would be ok,” which the judge concluded “qualifies as medical treatment and was the employer’s standard treatment approach for these types of complaints during the time period for which the employee played.” Accordingly, the compensation judge concluded that “this is an action or proceeding under the statute and tolls the statute of limitations.”
In a 3-2 decision, the WCCA affirmed the compensation judge’s decision. Noga v. Minn. Vikings Football Club, No. WC18-6133, 2018 WL 4923827 (Minn. WCCA Sept. 19, 2018).
That ruling was appealed to the Minnesota Supreme Court on three grounds. “First, the Vikings contend that the WCCA erred by concluding that Noga suffered a Gillette injury in the form of brain injury, head trauma, and/or dementia as a direct result of his work for the Vikings, that his work for the Vikings was a substantial contributing factor in Noga’s permanent and total disability, and that the Gillette injury culminated on or about December 1, 1992. Second, the Vikings contend that Dr. Fruean’s 2004 report attached to the orthopedic stipulation for settlement did not constitute adequate notice under Minn. Stat. § 176.141. Third, the Vikings argue that the statute of limitations bars Noga’s claim because no proceeding occurred that satisfied the statute of limitations under Minn. Stat. § 176.151.
“We agree with the Vikings that Noga’s claim is barred by the statute of limitations. Because our holding on this issue is dispositive, we do not address the arguments regarding the existence or cause of Noga’s Gillette injury or the adequacy of the notice that the Vikings received.”
Elaborating on this, it wrote that “when a Gillette injury is at issue, the calculus and competing concerns are more complicated. The parties’ awareness, at the time of the initial events, of the potential for a Gillette injury and a determination regarding causation may be far more complex, given the nature of the underlying repetitive injuries, the nature of the eventual Gillette injury, and the state of science. In some cases, it may be possible that an employer is aware, or should be aware, that an employee’s repetitive stress injuries sustained on the job could lead to a compensable Gillette injury. But where medical knowledge is lacking or undeveloped regarding the link between specific types of on-the-job injuries and potential Gillette injuries, an employer’s provision of some measures of comfort is not necessarily an attempt to lull an employee into believing that a workers’ compensation claim is unnecessary. In such a case, the usual rationale for recognizing that a proceeding occurs when an employer furnishes benefits under the statute is altogether lacking.
“Here, nothing in the record suggests that the Vikings knew or should have known that Noga was at an increased risk of developing a compensable Gillette injury in the form of dementia when the Vikings’ staff provided Advil and Tylenol for the headaches and wooziness Noga experienced following play. Noga played for the Vikings from 1988 to 1992, but medical awareness of the connection between and among head injuries, possible concussions, and the potential long-term neurological effects of those events had not yet developed. See, e.g., Kevin M. Guskiewicz, et al., Epidemiology of Concussion in Collegiate and High School Football Players, 28 Am. J. Sports Med. 643, 644 (2000) (noting in 2000 that guidelines for return to play after concussions ‘are based on limited scientific data and have been developed based largely on anecdotal clinical evidence,’ and that as a result ‘none of the guidelines have been fully accepted or followed with any consistency by the sports medicine community’). Even if we could assume that some sense of obligation can be inferred from the Vikings’ provision of care to Noga, that obligation would only be related to Noga’s post-play symptoms (headaches), not the Gillette injury (dementia).
“In sum, under these facts, we cannot attribute to the Vikings an acceptance of responsibility—or, as we said in Livgard, ‘a conscious sense of obligation’ — for Noga’s later-diagnosed dementia when, at most, the care the Vikings staff provided indicated acceptance of responsibility for Noga’s headaches and related symptoms. We conclude that, in this case, the Vikings’ provision of care for Noga’s head injuries did not constitute a proceeding that prospectively satisfied the statute of limitations.”
Alapati Noga v. Minnesota Vikings Football Club and Travelers Group, Employer/Insurer, and Minnesota Vikings Football Club and Minnesota Assigned Risk Plan, administered by Berkley Risk Administrators Company, LLC, Relators, and Special Compensation Fund; S. Ct. Minn.; 2019 Minn. LEXIS 431 *; 2019 WL 3439661; 7/31/19
Attorneys of Record: (for plaintiff) Scott Wilson, Minneapolis, Minnesota, Raymond R. Peterson, McCoy Peterson, Ltd., Minneapolis, Minnesota; and John Lorentz, Saint Paul, Minnesota. (for defendant) Douglas J. Brown, Penny F. Helgren, Brown & Carlson, P.A., Minneapolis, Minnesota.


Articles in Current Issue