Viking’s comp claim too late

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In a unanimous decision published last week, the Minnesota Supreme Court overturned a decision by the state’s Workers Compensation Court of Appeals regarding work-related neurological problems suffered by a former Minnesota Viking.

The court threw out a workers’ compensation award that had been granted to Alapati “Al” Noga, who played on the team’s defensive line from 1988 to 1992. The court said the Vikings’ treatment of Noga’s headaches with over-the-counter medicines was not sufficient to toll the statute of limitations and that his ultimate claim for benefits, filed in 2015, came too late.

Noga, who now suffers from myriad ailments including dementia, played at a time when the study of brain damage caused by the repeated head trauma that comes with football was in its infancy. Several times during his playing career he complained of headaches and other discomfort, and team trainers would usually give him an over-the-counter pain reliever and direct him to lie down until the pain went away.

About a decade after retiring from football, Noga filed a workers’ compensation claim for benefits. A compensation judge determined that Noga was entitled to permanent total disability benefits. The Vikings and their insurer took the case to the WCCA, which sent the case back to a compensation judge. That judge again decided in Noga’s favor, ruling among other things that he had sustained a Gillette injury — which occurs when the cumulative effects of minute, repetitive trauma are serious enough to disable an employee — during his playing days.

Perhaps more important, the compensation judge said that the statute of limitations was satisfied because the Vikings had provided Noga with medical care, even if it was something as basic as giving him a Tylenol.

Second opinion

Crucial to the Vikings’ appeal was a 2014 examination of Noga by Dr. Thomas Misukanis, a psychologist and clinical neuropsychologist. After a lengthy examination of Noga and his medical history, 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.”

Another doctor hired by the Vikings, however, looked at Noga’s medical history attributed his ailments to past drug abuse and head trauma from a 2011 car accident.

The Vikings argued before the Supreme Court that the statute of limitations bars Noga’s claim because no proceeding occurred during the time covered by the statute. Neither party argued that the statute had begun to run in 2004, when Noga made his initial workers’ comp claim.

Noga’s attorney, Raymond R. Peterson of McCoy Peterson in Minneapolis, said Noga was a victim of the nature of Gillette injuries, which often don’t fully reveal themselves until years after the fact — by which time the statute of limitations for filing a claim could have elapsed.

“If an employee provides medical care, the statute of limitations is satisfied,” he said. “He should have been able to further pursue benefits when his symptoms became much worse years later.”

The Supreme Court didn’t see it that way, maintaining that it’s not the job of an employer to predict the potential of a Gillette injury.

“The evidence in the record does not support the conclusion that the Vikings assumed liability for Noga’s eventual Gillette injury of dementia because nothing suggests that, at the time the Vikings provided care to Noga, the Vikings knew or should have known that Noga would develop such an injury,” wrote Justice Natalie Hudson in the opinion.

While stopping short of saying the high court threw out the earlier decision on a technicality, Peterson did contend that the court could have more deeply taken into account the slow-developing nature of Noga’s disabilities, and how that might clash with the statute of limitations governing appeals related to them.

Noga was also represented by St. Paul attorney John Lorentz.

Noga isn’t the first ex-Viking to go to battle over concussion issues. Brent Boyd, who played for the team during 1980s, has been one of the most vocal critics of the league’s approach to retired players, characterizing the NFL’s solution to the problem as “Deny, delay, and hope we go away.” The NFL settled a separate suit with about 4,500 players (including former Vikings Carl Eller and Jim Marshall) in 2013, for $765 million.

Peterson said Noga “took a terrible beating” playing pro football, but the injuries he endured on the field “were not disabling when he retired. They are now.”

While Noga is left with no recourse in this case, Peterson said he “has a desk full” of similar claims from other former players.