NEWS / Legal News - August 2019
Supreme court rules on statute of limitations for employer provided medical treatment for current and not yet developed conditions
Concussion Related Dementia
Alapati Noga played professional football for the Minnesota Vikings from 1988 until 1992.
While with the Vikings, he sustained numerous hits to his head, resulting in headaches and wooziness. He told the team trainers about his headaches, and they dispensed over-the-counter pain relievers.
In 2001, he filed a claim petition against the Vikings for workers’ compensation benefits as a result of orthopedic injuries. His claim was settled in 2004.
In January of 2015, Noga’s counsel filed a workers’ compensation claim petition. He sought permanent total disability benefits as a substantial result of dementia caused by head trauma sustained while with the Vikings. The parties stipulated that Noga was permanently and totally disabled, but disputed causation and notice and also disputed whether his claims were barred by the statute of limitations.
The judge ruled in favor of Noga. The judge found that the Vikings had actual notice of the cognitive disability because a medical report attached to the 2004 stipulation for settlement mentioned “black-out and concussion-related concerns,” in addition to the orthopedic injuries that were the subject of the claim at that time. As to the statute of limitations defense raised by the Vikings, the judge held that the care rendered by the Vikings trainers was sufficient to toll the statute.
In September of 2018, the WCCA affirmed the compensation judge in a split decision, 3-2. The Vikings requested review by the Minnesota Supreme Court. In a unanimous decision, decided by six members of the court, the decision of the WCCA was reversed. Noga’s award of permanent total disability benefits was thrown out. The Supreme Court held that Noga’s claim was barred by the statute of limitations. The court held that the statute of limitations began to run at the point in time where he had “sufficient information of the nature of the injury or disease, its seriousness, and probable compensability.” That date was in 2004 when the medical report on the orthopedic injuries also mentioned the concussion-related issues. The court concluded that the statute of limitations expired, at the latest in February of 2010.
The Minnesota Supreme Court rejected Noga’s argument that provision of over-the-counter pain killers, in and of itself, tolled the statute. The court wrote, “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 Viking’s staff provided Advil and Tylenol." The court was persuaded that at the time Noga played as a defensive lineman, “medical awareness of potential long-term neurological effects” from head injuries had not yet developed.
This opinion should not be over-read. The court did not hold that provision of over-the-counter pain medication will toll the statute of limitations in every case. Employers should remain cautious of an on-site provision of treatment. This decision does signal two things, however. First, that the Supreme Court remains willing to overturn the five-membered specialty appellate court (the WCCA). Second, it is also willing to take a close look at a statute of limitations defense in the context of a Gillette injury. This defense has always proved challenging for employers because of the problems inherent with Gillette injury claims. All available defenses should be raised when a medically complicated claim is litigated.
Alapati Noga came to the U.S., from American Samoa, when he was a pre-schooler. He started playing football in the ninth grade. He played as a defensive lineman, throughout his school years and as a pro. He was known for a particularly “head-first” style of play. He was drafted by the Vikings in the third round of the 1988 draft, while he was still in college. He played for the Vikings from 1988 until 1992.
His last day for the Vikings was December 1, 1992. He went on to play one season for the Redskins and a partial season for the Colts. When the Colts did not renew his contract, he played in the Arena league, with his last game in 1999.
Before the Vikings drafted him, he had experienced headaches. While with the Vikings, he sustained numerous hits to his head, resulting in headaches and wooziness. Even after taking a hit, he would keep playing. He told the team trainers about his headaches, and they dispensed over-the-counter pain relievers. However, he didn’t tell his coach or the Vikings management “too much.” He felt he should keep his problems to himself if he wanted to keep playing in the NFL. In addition to his headaches and orthopedic injuries, Noga also suffered from other health issues, including gout, drug abuse, sleep apnea, and depression.
In 2011, after an extensive neuropsychological examination, Noga was diagnosed with dementia. The examining doctor thought that there was no clear etiology, but that multiple head trauma “certainly is indicated as an important factor.” In 2014, a separate neuropsych examined him and did a battery of tests. He diagnosed moderate brain impairment resulting from a multitude of factors, including concussions/mild brain injuries while playing professional football. In 2014, the NFL approved Noga’s application for disability benefits, including medical care.
In January of 2015, Noga’s counsel filed a new workers’ compensation claim petition. He sought permanent total disability benefits as a substantial result of dementia caused by head trauma sustained while with the Vikings. The Vikings had an IME which concluded that Noga was disabled, but that his disability was due to past drug abuse and a previous motor vehicle accident. A hearing was held in 2016. The parties stipulated that Noga was permanently and totally disabled, but disputed the cause of his condition. The compensation judge found in Noga’s favor. The judge determined that Noga sustained a Gillette injury of head trauma, brain injury and/or dementia that culminated on December 1, 1992, Noga’s last day as a Viking.
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