ALAPATI NOGA, Employee/Respondent, v. MINN. VIKINGS FOOTBALL CLUB and TRAVELERS GROUP, Employer-Insurer, and MINN. VIKINGS FOOTBALL CLUB and MINN. ASSIGNED RISK PLAN, ADMIN’D BY BERKLEY RISK ADM’RS CO., LLC, Employer-Insurer/Appellants, and SPECIAL COMP. FUND.
CAUSATION – GILLETTE INJURY. Substantial evidence, including lay testimony, medical records, and expert medical opinion, supports the compensation judge’s finding that the employee’s work activities while playing for the Vikings, in the form of repeated head injuries, were a substantial contributing factor to the employee’s Gillette injury.
GILLETTE INJURY – DATE OF INJURY. The compensation judge did not err as a matter of law in setting the date of culmination of the employee’s Gillette injury on the last date worked for the employer.
NOTICE OF INJURY – SUBSTANTIAL EVIDENCE. Substantial evidence supports the compensation judge’s finding that the employer in 2004 was aware of the contents of Dr. Fruean’s report and that the information contained in that report was sufficient to put a reasonable employer on inquiry that the employee might have a workers’ compensation injury relating to concussions or head injuries sustained playing football for the employer. We accordingly affirm the judge’s finding of adequate notice.
PRACTICE & PROCEDURE – STATUTE OF LIMITATIONS. Substantial evidence supported the compensation judge’s determination that the provision of treatment by the Vikings’ training room staff for head traumas and concussions sustained by the employee while playing for the team was a “proceeding” initiated prior to the running of the statute of limitations, and that the statute of limitations does not bar the employee’s claim.
Attorneys: Raymond R. Peterson, McCoy, Peterson, Jorstad, Ltd., Minneapolis, Minnesota, for the Respondent. Penny F. Helgren, Brown & Carlson, Minneapolis, Minnesota, for the Appellants.
The employer and insurer appeal from the compensation judge’s findings on remand that the employee sustained a Gillette injury culminating on December 1, 1992, as a substantial result of concussion injuries sustained during his employment; that the employer and insurer had sufficient statutory notice of the injury; and that the employee’s claim is not barred by the statute of limitations. We affirm.
The employee, Alapati Noga, started playing school football in the ninth grade. He continued playing through junior high and high school; subsequently, he was given a football scholarship to attend the University of Hawaii and played college football there for four years before being drafted by the Minnesota Vikings in 1988. He played for the Vikings from July 28, 1988, when he reported to training camp, through the 1992 season, after which his contract was not renewed and he became a free agent. He was then hired by the Washington Redskins and played a single season for that team in 1993. In 1994, he was picked up in midseason by the Indianapolis Colts. After playing about eight games with the Colts, the employee went from the NFL to play for teams in the Arena Football League until he retired from professional football in 1999.
At all times during his professional football career, the employee played as a defensive lineman. He testified that because he was considered undersized as compared to other defensive lineman, he used his speed and quickness to compensate. He also tackled by leading with the head instead of the shoulder, a method that was allowed in the NFL at that time. The employee testified that he began to experience headaches playing football in high school, which he associated with his “violent style of play” delivering impacts against other players with his head. These headaches continued to worsen through college football.
While employed by the Vikings, he similarly continued to experience headaches and dizziness after tackling in this manner during games and practice. At times, he reported these symptoms to the trainer, Fred Zamberletti, or to the team doctor, Dr. David Fischer, explaining that he was “feeling woosy [sic] from whatever hit that I made or whoever had hit me before, that play before.” (2016 T. 64.) He typically was provided with Advil or Tylenol; occasionally the training staff gave him a blanket and told him to rest in the training room. He testified that he was told to “fight through it” and that if he could not handle it, he would be taken out of the game, an outcome which he strove to avoid. At other times, the employee did not report headache symptoms during play as he believed that doing so might adversely affect his long-term prospects for employment as a professional football player.
After his contract ended with the Vikings, the employee continued to experience hits to the head during tackles and blocks while playing for the Redskins and the Colts, and then while playing in the Arena Football League. He continued to experience headaches and nausea and again was typically given pills by team trainers and physicians when he came off the field and went to the training room. The employee testified that he continued to minimize any injuries to protect his career.
The employee was seen by Dr. James Pearce, M.D., at the Straub Clinic for a neurology consultation on October 1, 2007. In addition to other conditions, relating to the low back and upper extremities, the employee complained of headaches and disturbances to balance and memory. Dr. Pearce recommended an MRI of the brain. An MRI of the employee’s brain was performed on January 19, 2008. The scan revealed mild cerebellar tonsillar ectopia but was otherwise normal.
The employee applied for social security disability benefits in the fall of 2007. In an appeal from an initial denial in 2008, he reported that his condition had changed for the worse since December 1, 2007, with worsened memory loss and vision, and increasing blackouts. In 2009, the employee was awarded social security disability based on findings that the employee had sustained numerous concussions and musculoskeletal injuries while playing football and had been left with very poor vision, being legally blind and unable to drive. The employee submitted an NFL player disability benefits application in June 2009, which was also accepted.
On February 14, 2011, the employee was seen for a neuropsychological consultation by Gayle Hostetter, a psychologist, at the request of his treating physician, who had referred the employee because of his memory problems which the employee worried might indicate the beginning of dementia. The employee reported a history of memory problems as well as other cognitive, neurologic, and medical problems that he attributed to his career as an athlete throughout school and as a professional football player. Dr. Hostetter opined that the employee’s intellectual functioning showed a general decline, meeting a diagnosis for a dementia. She noted that the etiology of the condition was not clearly indicated by the level of function, but considered that multiple head trauma was likely indicated as an important factor.
The employee treated with Dr. Laila Spina, Psy.D., at Pacific Neuropsychology Services for several years beginning in 2011, receiving individual therapy. Beginning in December 2011, the notes from these sessions frequently discuss the employee’s plans to complete paperwork to apply for benefits from the NFL’s “Plan 88” program for former players with dementia.
On December 1, 2014, the employee was seen for a neuropsychological evaluation by Thomas M. Misukanis, Ph.D., a clinical neuropsychologist, at the request of his attorney. Dr. Misukanis interviewed the employee, administered a series of neuropsychological, academic and intellectual tests, and reviewed the employee’s pertinent medical records. He concluded that the employee met the standards for a diagnosis of Major Neurocognitive Impairment (dementia) under the criteria set out in DSM-5. He rated the employee with an 86.5 percent permanent partial disability. He further opined that the employee was not currently employable.
Dr. Misukanis attributed the employee’s cognitive deficits to the combined effect of several factors, including ADHD, untreated sleep apnea, chronic pain, cannabis use, prior methamphetamine and alcohol abuse, psychological disturbance, and multiple concussion injuries sustained while playing professional football. He explained that while “a single, uncomplicated concussion usually will resolve in weeks to months[,] the problem becomes [sic] when you have concussion on top of concussion on top of concussion, when you have repetitive injuries.” In such a situation, Dr. Misukanis explained, “the damage to the brain can be exponential . . . in time you use up the brain’s ability to heal from the concussions and you can be left with more permanent deficits.” (2016 T. 118.) Although acknowledging that the employee’s history of concussions during his football career was not the sole cause of the employee’s cognitive dysfunction, Dr. Misukanis considered it to be a significant contributing factor.
The employee was also seen for a vocational/psychological evaluation by Philip Haber, Psy.D., at Metropolitan Rehabilitation Services. Dr. Haber concluded that the employee was permanently and totally disabled due to his dementia and ADHD in combination with his orthopedic injuries.
The employee’s attorney served a claim petition on the employer and other parties by mail on January 15, 2015, seeking workers’ compensation benefits against the Vikings for the effects of several specific alleged head injuries and for a Gillette injury to the head. The claim petition was filed at the Minnesota Department of Labor & Industry on January 20, 2015. The Vikings offered a number of affirmative defenses, including a denial of primary liability as well as notice and statute of limitations defenses.
The employee was evaluated on behalf of the employer and insurer on May 16, 2015, by Stanley Ferneyhough, Ph.D., a neuropsychologist. While Dr. Ferneyhough agreed with the diagnosis of a major neurocognitive disorder, he disagreed with Dr. Misukanis with respect to causation. In his opinion, there was no evidence that the employee had experienced any concussions during his employment with the Vikings sufficient to cause significant neuropsychological sequelae and, accordingly, he concluded that the employee’s condition was not due to his employment by the Minnesota Vikings as a defensive lineman between 1988 and 1992. Dr. Ferneyhough attributed the employee’s condition primarily to other factors, including drug addiction, sleep deprivation, chronic pain, ADHD and vision problems. He agreed that the employee was currently totally disabled but noted that the duration of total disability into the future was uncertain and dependent on the results of appropriate medical, psychological, and chemical dependency treatment.
The matter came on for hearing on April 8, 2016, before a compensation judge at the Office of Administrative Hearings. Following the hearing, the judge found that the employee had not proven that he sustained an injury on any of seven specific dates alleged, finding that the evidence indicated that the employee had not played on any of those specific dates. However, the judge concluded that the employee’s testimony credibly showed that he had sustained multiple concussion injuries on unspecified dates while playing for the Vikings. He found that the employee had sustained a Gillette injury resulting in his subsequent dementia condition, culminating on the last day of his employment with the Vikings. The judge found that the Vikings had sufficient notice of the employee’s Gillette injury and that the statute of limitations had been met by medical treatment provided in the team’s locker room while the employee was employed by the Vikings. Finally, the judge found that the employee’s claims were not closed out by the 2004 stipulation for settlement.
The Vikings appealed the matter to this court in 2017. No cross-appeal was filed by the employee with respect to the denial of the individual concussion injuries alleged to have been sustained on specific dates. In an opinion filed on April 20, 2017, this court observed that while the employee’s medical expert had opined that the concussions sustained by the employee throughout his football career had substantially contributed to the employee’s dementia, that opinion was unclear with respect to whether the work activities specific to the employment with the Minnesota Vikings were in themselves substantial contributing factors to the disability.
Noting that the compensation judge had not provided an analysis of how the evidence supported the finding of a Gillette injury as against the Vikings, we vacated the compensation judges’ determination of a Gillette injury and remanded for further proceedings. We also requested that the judge make findings on two further issues: 1) when the employee as a reasonable person should have recognized the nature, seriousness, and probable compensable character of the injury; and 2) the date when the disablement began. In light of our vacation of the Gillette injury finding and other findings, we also vacated and remanded the finding that the notice requirements of Minn. Stat. § 176.141 were satisfied by actual knowledge by the employer of the employee’s injury and the finding that the statute of limitations for the December 1, 1992, Gillette injury was met by the employer’s provision of medical care and treatment in the form of aspirin and a place to rest. We affirmed the compensation judge’s determination that the 2004 stipulation did not foreclose the employee’s claims.
The hearing on remand was held on October 10, 2017. The judge relied on the record from the previous hearing along with new evidence in the form of the deposition testimony of Dr. Misukanis taken on October 4, 2017, and the deposition testimony of Dr. Ferneyhough taken on October 5, 2017. Dr. Misukanis testified that in his opinion the employee’s activities during the time spent playing for the Vikings had been a substantial contributing factor to the employee’s development of his neurocognitive difficulties. Dr. Ferneyhough, on the other hand, once again opined that there was no objective evidence to suggest that the employee sustained concussions during his employment with the Vikings. In his Findings and Order served and filed on December 11, 2017, the judge again found that the employee had sustained a Gillette injury as a substantial result of concussions sustained during his time playing for the Vikings. The judge further found that the Vikings had actual or inquiry notice of the employee’s injury no later than the date of Dr. Fruean’s report, which was attached to the parties’ 2004 stipulation for settlement. The remaining findings from the July 8, 2016, Findings and Order were incorporated by reference as Finding 1. The employer and insurer appeal.
The employee alleged that he had sustained a Gillette injury in the nature of head trauma, a brain injury and/or dementia, culminating on December 1, 1992. To establish a Gillette injury, an employee must prove a causal connection between ordinary work and disability. Steffen v. Target Stores, 517 N.W.2d 579, 50 W.C.D. 464 (Minn. 1994). “The question of a Gillette injury primarily depends on medical evidence.” Marose v. Maislin Transport, 413 N.W.2d 507, 512, 40 W.C.D. 175, 182 (Minn. 1987).
The compensation judge accepted as credible the employee’s testimony that he sustained multiple head injuries during his time playing for the Minnesota Vikings and describing the symptoms he experienced from those injuries. The judge expressly adopted the expert medical opinion of Dr. Misukanis, finding that the employee’s work activities with the employer are a substantial contributing factor to the employee’s permanent cognitive dysfunction.
The employer and insurer argue that the finding of a Gillette injury is unsupported by substantial evidence. They note that the records of the Vikings’ team physician and of the training room staff mention no reports of head injuries or concussions by the employee, and characterize the employee’s testimony as merely “self-serving.” Because Dr. Misukanis accepted the employee’s testimony regarding his head injuries and symptoms as the foundation for his expert opinion, the appellants contend that Dr. Misukanis’ opinion had an improper or insufficient foundation and that it accordingly fails to support the finding of a Gillette injury. The appellants suggest that the compensation judge should instead have accepted the opinion of their expert, Dr. Ferneyhough, who noted the absence of contemporary evidence corroborating the employee’s testimony and opined that the employee’s dementia condition and related symptomology did not result from the employee’s activities during his employment with the Vikings.
The common thread underlying these arguments is the contention that the employee’s testimony was not credible in the absence of corroboration. The assessment of witness credibility is the unique function of the trier of fact. Brennan v. Joseph G. Brennan, M.D., 425 N.W.2d 837, 839-40, 41 W.C.D. 79, 82 (Minn. 1988). It is not the role of this court to evaluate the credibility and probative value of witness testimony or to choose different inferences from the evidence than those made by the compensation judge. See Krotzer v. Browning-Ferris/Woodlake Sanitation Serv., 459 N.W.2d 509, 513, 43 W.C.D. 254, 260-61 (Minn. 1990); Redgate v. Sroga’s Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988). The judge expressly found the employee’s testimony credible. The absence of corroboration in various contemporary records kept by the Vikings or its physicians does not compel the conclusion that the judge’s reliance on the employee’s testimony was clearly erroneous.
As to the judge’s decision to accept the expert opinion of Dr. Misukanis over that of Dr. Ferneyhough, we note that it is the role of the compensation judge to resolve conflicts in expert medical testimony. The judge’s choice of expert opinion is generally upheld on appeal unless the facts assumed by the expert in rendering an opinion are insufficient or not supported by the evidence. See, e.g., Smith v. Quebecor Printing Co., 63 W.C.D. 566 (W.C.C.A. 2003).
We conclude that substantial evidence supports the compensation judge’s finding that the employee’s work activities while playing for the Vikings, in the form of repeated head injuries, were a substantial contributing factor to the claimed Gillette injury. We therefore affirm the finding of a Gillette injury.
The judge set the date of culmination of the Gillette injury at December 1, 1992, the last day the employee worked for the employer. The appellants contend that the compensation judge erred as a matter of law in making this determination, noting that, as of that date, there was no evidence of any restrictions, lost time from work, or modifications to job duties, and that the employee was able to continue playing professional football for seven more years afterwards. They argue that it was improper to find culmination of a Gillette injury absent clear evidence of an “ultimate breakdown” and suggest that the employee’s Gillette injury logically culminated no earlier than 1999 when his football career ended.
Based on this date of culmination argument, they further contend that the finding of primary liability against the Vikings is inappropriate, and that liability should be borne by the last team for which the employee played during his time in the Arena Football League. In Michels v. American Hoist & Derrick, 269 N.W.2d 57, 31 W.C.D. 55 (Minn. 1978), the Minnesota Supreme Court held that equitable apportionment of liability for a single Gillette injury is inappropriate absent almost uncontroverted medical testimony that permits a precise allocation of responsibility. Pursuant to that decision, liability for a Gillette injury generally is held to rest with the employer and insurer on the risk on the date of disablement, so long as the duties of that employment were also substantial contributing factors to the Gillette process. This rule, however, is essentially one of apportionment, and is not a defense to primary liability. Here, however, none of the employee’s subsequent employers were parties to the case, and there was and is no issue of apportionment to resolve.
The compensation judge found that the work activities the employee performed while employed by the Vikings were a substantial contributing cause of the employee’s Gillette injury, and we have affirmed that finding. The primary liability of the Vikings is therefore established. Certainly, there is expert medical opinion in the record indicating that the employee’s activities playing football for other teams also contributed to his condition; however, as our supreme court has noted, “it is not necessary . . . for the employee to show that the work-related injury was the sole cause of the disability. It is only necessary to show that the injury was a legal cause, that is, an appreciable or substantial contributing cause.” Salmon v. Wheelabrator Frye, 409 N.W.2d 495, 497-98, 40 W.C.D. 117, 122 (Minn. 1987) (citing Roman v. Minneapolis St. Ry. Co., 268 Minn. 367, 129 N.W.2d 550, 23 W.C.D. 573 (1964)).
We also conclude that the compensation judge did not err as a matter of law in setting the date of culmination at the last date worked for the employer. In Schnurrer v. Hoerner-Waldorf, 345 N.W.2d 230, 233, 36 W.C.D. 504, 508 (Minn. 1984), the supreme court noted that a variety of “ascertainable events” may be present in a case and that the date when the employee might be deemed to have sustained the injury “should be determined on all the evidence bearing on that issue.” A finding as to the time of a Gillette injury is one of fact for the compensation judge, and this court has generally affirmed the compensation judge when that determination is based on substantial evidence. Cramer v. United Parcel Servs., 72 W.C.D. 519 (W.C.C.A. 2012); Furey v. Grand Itasca Clinic & Hosp., No. WC06-207 (W.C.C.A. Dec. 5, 2006); Pettis v. Metal Matic, slip op. (W.C.C.A. Jan. 18, 2000).
In several previous cases, we have affirmed a compensation judge’s selection of the last day of work for an employer as the date of culmination for a Gillette injury despite the fact that disability from work had not yet occurred. As we noted in Yates v. Muller Logging, Inc., No. WC06-210 (W.C.C.A. Jan. 3, 2007), the last day of work “was obviously the last day during which the employee’s work activities could have contributed to his disability.” See also Wittstock v. McPhillips Bros. Roofing Co., 73 W.C.D. 1 (W.C.C.A. 2013). The culmination date determined for the employee’s Gillette injury was not clear error. We therefore affirm.
Minn. Stat. § 176.141 provides that no compensation for an injury shall be allowed unless the employer has actual knowledge of the occurrence of the injury or written notice is given to the employer within 180 days. The notice period, however, does not begin to run until it is reasonably apparent to the employee that an injury has resulted in, or is likely to cause, a compensable disability. Issacson v. Minnetonka, Inc., 411 N.W.2d 865, 867, 40 W.C.D. 270, 274 (Minn. 1987); Jones v. Thermo-King, 461 N.W.2d 915, 43 W.C.D. 458 (Minn. 1990). The date on which an employee has obtained sufficient knowledge to trigger the duty to give notice is a question of fact. Barcel v. Barrel Finish, 304 Minn. 536, 232 N.W.2d 13, 28 W.C.D. 4 (1975).
The employer . . . argues that it became reasonably apparent to the employee that he was suffering a disabling cognitive disability at least as of Dr. Fruean’s report of February 17, 2004. Dr. Fruean’s report was relied on by the employee in his previous claim [for orthopedic injuries], was given to the employer as part of his previous claim, and was attached to the Stipulation for Settlement which resolved his previous claim. Given those facts, the employer and insurer had actual knowledge of the employee’s condition, and his position of the relation to his work activities, regardless of whether he brought a claim at that time or not.
(Memorandum at 3-4.) The appellants contend that the compensation judge’s finding of adequate notice should be reversed by this court.
The appellants argue that it should have been reasonably apparent to the employee that he had sustained a compensable disability as a result of his work activities with the Vikings as early as the end of the 1992 football season, based on his testimony that he had experienced instances of headaches and nausea which he attributed to playing football. The appellants itemize in their brief numerous other possible subsequent dates through 2013 for which the evidence might indicate sufficient knowledge by the employee to trigger his duty to give notice. They argue that regardless of which of their suggested dates is selected, no notice was given by the employee until the filing of his claim petition in January 2015.
On review of the evidence, we conclude that substantial evidence supports the compensation judge’s finding that the employee became reasonably aware of the possibility of a compensable, work-related injury as of the issuance of the report of Dr. Fruean, who apparently was the first physician to recommend a diagnostic workup for the employee’s headache and blackout episodes as potential work-related injuries associated with his time playing football for the Minnesota Vikings. While there was as yet no clear diagnosis, and other, later dates might have been selected by the compensation judge, we cannot say that the selection of the date of Dr. Fruean’s report was clearly erroneous. We therefore affirm the judge’s conclusion that the employee was reasonably aware of the nature and probable compensable character of his Gillette injury, and that the statute of limitations began to run, as of the date of Dr. Fruean’s report on February 17, 2004.
The compensation judge further noted that Dr. Fruean’s report was attached to the Stipulation for Settlement signed on behalf of the Vikings in March 2004. Clearly, if the contents of that report were sufficient to place the employee on notice of the likelihood of a compensable claim, the same report was also sufficient to place the Vikings on notice of that potential claim. It is not necessary that an employee provide formal written notice; actual knowledge is sufficient. Actual knowledge is such information as would put a reasonable employer on inquiry that the employee’s disability is work related. Pojanowski v. Hart, 288 Minn. 77, 178 N.W.2d 913, 25 W.C.D. 206 (1970). Actual knowledge, also called “inquiry knowledge,” simply requires that an employer have information connecting the work activity with an injury. Greene v. W & W Generator Rebuilders, 302 Minn. 542, 224 N.W.2d 157, 27 W.C.D. 654 (1974).
As a general rule, an employee need only give notice of the injury itself and not of the specific details of the mechanism of injury or specific body parts affected. See, e.g., Runkel v. Univ. of Minn., 62 W.C.D. 302 (W.C.C.A. 2002); Mehle v. Oglebay Norton Taconite Co., 57 W.C.D. 336 (W.C.C.A. 1997); Hagy v. Morton Bldgs., Inc., 67 W.C.D. 573 (W.C.C.A. 2007). “The notice requirement is designed to enable the employer to furnish immediate medical attention in the hope of minimizing the seriousness of the injury as well as to protect the employer by permitting him to investigate the claim soon after the injury.” Sobczyk v. City of Duluth, 245 Minn. 569, 73 N.W.2d 795, 19 W.C.D. 263 (1955). What is significant is that in March 2004 the employer had actual knowledge of an alleged work-related condition, yielding the opportunity to conduct an investigation, obtain the employee’s medical records, and monitor his medical care.
Generally, the question of whether the facts known to the employer within the statutory notice period were sufficient to constitute actual knowledge is one of fact for the compensation judge. Mulholland v. Carl Erickson Trucking, slip op. (W.C.C.A. June 4, 1998). The compensation judge reasonably concluded that Dr. Fruean’s report provided the employer with such information concerning a potential condition resulting from the employee’s concussion injuries playing football as would put the employer on inquiry that the employee’s disability was work related. Accordingly, the compensation judge found that notice was timely provided in this case by actual knowledge.
The appellants argue that because the notice statute specifically relates to notice given to an employer, not the employer’s attorney or agent, the judge’s finding on this point was legally erroneous. While this distinction might be significant in assessing the adequacy of service of formal written notice under the statute, the issue here was one of imputed notice by actual knowledge. The manner by which an employer obtains actual knowledge is not dependent on specific forms of service. It was not unreasonable under the circumstances for the finder of fact to infer that the Vikings had here gained sufficient knowledge of the contents of Dr. Fruean’s report as would put a reasonable employer on inquiry that the employee had a potential work-related claim relating to concussions or head injuries. We accordingly affirm the finding of adequate notice.
The compensation judge determined that the employee’s claim for benefits from his Gillette injury was not barred by the statute of limitations. The appellants contest the compensation judge's determination, arguing that no action or proceeding to determine benefits had been timely commenced pursuant to the applicable statute of limitations, Minn. Stat. § 176.151, subd. 1.
Actions or “proceedings by an injured employee to determine or recover compensation” must be brought within “three years after the employer has made written report of the injury to the commissioner of the Department of Labor and Industry, but not to exceed six years from the date of the accident.” Minn. Stat. § 176.151, subd. 1. As with the period for providing notice, the time set for compliance with the statute of limitations does not begin to run until the employee has sufficient information of the nature of the injury or disease, its seriousness, and probable compensability. Cf., e.g., Jones v. Thermo-King, 461 N.W.2d 915, 43 W.C.D. 458 (Minn. 1990).
As discussed in the context of notice, the compensation judge implicitly found that such information was known to the employee as of the date of Dr. Fruean’s 2004 report. Since it is undisputed that the employee did not file his claim petition in this matter until January 2015, the appellants argue that this court should reverse the compensation judge and hold that the employee’s claim is barred by the statute of limitations.
It is well settled that when the employer assumes responsibility for the medical treatment of a workers’ compensation injury, that act may constitute a “proceeding” for the purposes of Minn. Stat. § 176.151. Livgard v. Cornelius Co., 308 Minn. 467, 243 N.W.2d 309, 28 W.C.D. 413 (Minn. 1976); Knopp v. Gutterman, 258 Minn. 33, 102 N.W.2d 689, 21 W.C.D. 195 (1960). Here, the compensation judge found that the provision of treatment by the Vikings’ training room staff for head traumas and concussions sustained by the employee while playing for the team was a “proceeding” initiated prior to the running of the statute of limitations.
In reaching this conclusion, the compensation judge accepted both the employee’s testimony about his reporting of symptoms to the training room staff or the team doctor following some of the head trauma and concussion injuries he sustained during his work activities and his testimony about the treatment that was provided for those symptoms. The employer and insurer contend that the compensation judge erred in relying on the employee’s otherwise uncorroborated testimony, particularly where the training room records do not describe such treatment. This is essentially a credibility question. We have already found the compensation judge’s reliance on the employee’s testimony was appropriate where it supported the finding of a Gillette injury. For similar reasons, we conclude that the employee’s testimony here is sufficient support for the judge’s factual findings describing the training room treatment provided by the employer for the employee’s head trauma and concussion symptoms.
The employee testified that the treatment provided consisted primarily of the provision of “Advil or Tylenol” and in providing the employee a place to lie down. The appellants argue that even if the training room treatment described in the employee’s testimony was provided, the compensation judge erred as a matter of law in concluding that the treatment was significant enough to constitute a “proceeding” meeting the requirements of the statute. They point out that in Livgard, the supreme court specifically held that the occasional provision of aspirin by a company nurse for an employee’s complaints of back, hip and leg pain did not constitute a “proceeding” which met the statute of limitations. The court there noted that, under the facts shown in that case, aspirin was dispensed by the company nurse “as a general service provided to all employees who suffer from minor ailments of whatever nature and origin.” There was no evidence to suggest that the employer had been provided with any information relating the employee’s symptoms to his work. The court held that, under those facts, there was no evidence that the treatment was provided “in response to a conscious sense of obligation for a work-related injury” so as to constitute a “proceeding” for the purposes of the limitations statute.
We similarly conclude that, under the specific circumstances of this case, there is substantial support in the evidence for the compensation judge’s conclusion that the treatment provided, even though limited in scope, was sufficient to represent an acknowledgment of responsibility for a work injury.
The appellants assert, however, that even if the treatment rendered could be deemed a “proceeding” meeting the statute of limitations for incidents of concussion and head trauma, the employee’s claim should nonetheless be held time-barred because the claim awarded by the compensation judge was not for the concussions or head traumas sustained in these incidents, but for a different injury -- a Gillette injury that had not yet culminated at the time the treatment was rendered. They argue that the statute of limitations clearly cannot be met by a “proceeding” that took place prior to the occurrence of the Gillette injury.
We are not persuaded. First, we note that, as a practical matter, the culmination date set for a Gillette injury, in contradistinction to the date of a specific injury, will inevitably be later than some or all of the contributing traumatic events and their associated work activities. Significantly in this case, the judge found that the employee sustained concussions on unspecified dates while working for the Vikings, the effects of which contributed to the eventual culmination of a Gillette injury, although those specific concussion events were not found to be initially disabling and therefore compensable in their own right.
The coverage of the Workers’ Compensation Act is based on the injury; the operative factor in acquiring compensation rights is the injury, not the accident. Moreover, it is no longer disputed that a covered injury encompasses the physical harm of the kind which is unknown to the employee at the time of the accident but which is later revealed, such as an occupational disease or latent wound.
. . . we are not persuaded that, for purposes of the statute of limitations, the employee’s wrist sprain in 1979 was a different injury from the Dupuytren’s contracture condition by which he continues to be disabled. An employer and insurer may be liable “for every natural consequence that flows from” a compensable injury. . . . It was not unreasonable for the compensation judge to conclude from [the] evidence that the employee’s development of Dupuytren’s contracture symptoms was a “natural consequence” flowing from the employee’s work injuries, and therefore we defer to that conclusion.
Meyers, 67 W.C. D. at 402 (citations omitted).
In the present case, where the employee’s Gillette injury was found to be a direct result of the concussions sustained while playing for the Vikings and treated by the team’s training staff, we must conclude that the case before us more closely resembles in its material aspects the situation in Meyers than it does that presented in Livgard, despite the superficial similarities with respect to the modality of treatment. We conclude that substantial evidence supports the judge’s finding that the statute of limitations does not bar the employee’s claim.
DEBORAH K. SUNDQUIST, Judge (concurring in part, dissenting in part).
The compensation judge’s award of benefits for the employee’s dementia condition caused by playing football required findings on three issues, all of which are affirmed by the majority: whether the employee suffered a Gillette injury in December 1992, whether the employee and the employer and insurer were on notice of the employee’s dementia condition, and whether the statute of limitations had been tolled. I concur with the majority that substantial evidence in the record supports the compensation judge’s finding with respect to the Gillette injury issue, but because the findings on the remaining two issues are erroneous as a matter of law and not supported by substantial evidence, I respectfully dissent.
First, the judge found that the 2004 report of Dr. Fruean, which was attached as an exhibit to a stipulation for settlement between the parties, was sufficient to put both the employee and the employer and insurer on notice of the employee’s dementia condition. I disagree. Dr. Fruean’s terse report merely mentions complaints of blackout episodes and headaches, and he recommends that the employee be evaluated by a neurologist for these issues. Both Drs. Ferneyhough and Misukanis testified that the report of Dr. Fruean was not sufficient to convey the severity of the employee’s disability at that time. Substantial evidence in the record does not support the compensation judge’s conclusion that Dr. Fruean’s report provided sufficient notice to the employee and the employer and insurer of the employee’s dementia condition as of 2004.
Furthermore, even if the report was enough to prompt the employee to be aware of a compensable claim, there is no evidence in the record that the employer received Dr. Fruean’s report. As a matter of practice, the workers’ compensation statute does not require a stipulation for settlement be provided to the employer, but only that the insurer convey to the employer the amount paid and the terms of the agreement within 30 days of approval. Minn. Stat. § 176.522. Certainly the statute does not require employers be provided exhibits to the agreement, which often contain confidential medical reports. Id.; see also Minn. Stat. § 176.521. This finding should be reversed and the issue of when the employee and the employer and insurer were on notice of the employee’s dementia condition should be remanded for further findings.
Second, the judge found that the statute of limitations was met sometime between 1988 and 1992 when the training staff provided the employee with Tylenol, ibuprofen, or a place to rest. I disagree with the majority’s affirmance of the judge’s conclusion that the furnishing of this treatment rises to the level of a “proceeding” under Minn. Stat. § 176.151. Rather, the facts of this case are analogous to those in Livgard, where the Minnesota Supreme Court rejected an argument that the furnishing of aspirin by the company nurse constituted a “proceeding,” and held that meeting the statute of limitations requires a “conscious sense of obligation” for the work injury, and thus, “an acceptance of liability.” As was recognized by the court in Livgard, many Minnesota employers provide first aid or medication for the relief of minor ailments. Some even offer an on-site occupational health nurse or physician to keep workers healthy and safe. Minnesota employers might interpret the majority decision as a requirement that they log every workers’ request for Tylenol or need to rest as “payment by the employer” of a workers’ compensation benefit even when there is no known injury. See Minn. Stat. § 176.151. This cannot be a result the majority intends.
Further, the judge’s finding that the statute of limitations was tolled before the injury occurred is flawed. It has long been held that the statute of limitations begins to run when the employee has sufficient knowledge of a disabling injury. Mr. Noga was not disabled between 1988 and 1992, and without a disabling injury, it was not possible for him to be aware that one existed and for the statute of limitations to begin to run. For these reasons, the judge erred in finding that the statute of limitations was met between 1988 and 1992.
I acknowledge the difficulty in trying, defending, and deciding this case under a Gillette theory. At the October 10, 2017, hearing on remand, counsel recognized that the facts in this matter could fall under an occupational disease analysis. However, due to procedural limitations, this court’s review is limited to the theory under which the case was tried below.
SEAN M. QUINN, Judge (concurring in part, dissenting in part).
I join in the separate opinion of Judge Sundquist.
 Hereinafter, the phrase employer and insurer refers to Minnesota Vikings Football Club and Minnesota Assigned Risk Plan, administered by Berkley Risk Administrators Company, LLC.
 See Gillette v. Harold, Inc., 257 Minn. 313, 320-22, 101 N.W.2d 200, 205-06, 21 W.C.D. 105, 111-13 (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).
 See Ex. 1 at pp. 25-28, and Ex. A at pp. 36-37.
 The ultimate disabling condition of dementia was not diagnosed until several years later.
 Lofgren v. Piepar Farms, 540 N.W.2d 834, 53 W.C.D. 464 (Minn. 1995); Jones v. Thermo King, 461 N.W.2d 915, 43 W.C.D. 458 (Minn. 1990).
 Nor was Mr. Noga disabled in 2004, as explained above.


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[295 U.S. 403, 404] Mr. William Neff, of Tulsa, Okl., for appellant.
Mr. Richard H. Wills, of Tulsa, Okl., for appellees.
This was a suit brought in a court of Seminole county, Okl., by a full-blood Creek Indian to recover an [295 U.S. 403, 405] interest in land inherited from his grandmother, also a full-blood Creek Indian, and afterward sold by his guardian. The asserted grounds for a recovery were (1) that the proceedings whereby the plaintiff was adjudged an incompetent and subjected to guardianship on that basis, and also the proceedings leading to the sale, were invalid, because in some particulars irregular or not in accord with the laws of Oklahoma; (2) that the sale was in contravention of a controlling federal restriction on alienation; and (3) that an Act of Congress of April 12, 1926, c. 115, 2, 44 Stat. 239, permitted the suit to be brought within two years after the act's approval, notwithstanding any bar which may have arisen under the state statutes of limitation before such approval.
The defendants answered and a trial was had at which judgment was given for them on a demurrer to the plaintiff's evidence. The Supreme Court of the state affirmed the judgment, 167 Okl. 531, 30 P.(2d) 875, and put its decision on the grounds (a) that the suit was barred by the state statutes of limitation, and (b) that the Act of Congress of April 12, 1926, relied on by the plaintiff as avoiding such a bar, could not be applied, because, if applied, if would deprive the defendants, who are holding under the guardian's sale, of vested rights without due process of law. The court's opinion did not mention the federal restriction on alienation set up by the plaintiff; but, of course, the judgment necessarily meant that the court regarded the asserted restriction as not requiring a different result.
The plaintiff and his grandmother were full-blood Indians of the Creek Tribe, enrolled as such, and entitled to share in the allotment of the tribal lands among the members. She died before receiving her allotment, and after her death the land in question, which was part of the tribal lands, was allotted and patented in her right, the patent being issued to her 'heirs' without naming them. Under the applicable statute the heirs received the land as an inheritance from her and not as an allotment in their own right. 1 The plaintiff was one of the heirs. He also received an allotment in his own right; and thus, like many others, he had a personal allotment as well as an interest in inherited land.
In May, 1916, the guardian by a verified petition requested the county court to authorize a sale of the plaintiff's interest in the inherited land for the purpose of securing money needed for his maintenance and support and for the improvement of his personal allotment. A month later the court entered an order reciting a hearing on that petition after lawful notice; finding the proposed sale was necessary for the purposes named; and directing the guardian to make the sale. Under that order the guardian made the sale at public auction to the highest bidder and reported it to the county court. July 11, 1916, the court entered an order (1) finding that due notice of the intended sale was given, that the sale was fairly conducted and legally made, and that the price was not disproportionate to the value of the property; (2) confirming and approving the sale; and (3) directing the guardian to execute a deed to the purchaser. The purchase price was paid to the guardian and he executed and delivered to the purchaser a deed, which was filed for record in the proper office July 12, 1916. The purchaser then entered into possession and he and his grantees remained in possession continuously thereafter. The defendants are the present claimants under the guardian's sale.
As part of the plaintiff's evidence, it was stipulated that the Secretary of the Interior had never removed any restrictions on the alienation of the inherited land, and that the same thing was true of the plaintiff's personal allot- [295 U.S. 403, 408] ment. But the defendants, although joining in the stipulation, objected that the facts stipulated were immaterial.
Under the state statutes thus described, the court held that the plaintiff's asserted right to call in question the guardian's sale was barred before the suit was begun and [295 U.S. 403, 409] before the approval of the Act of Congress of April 12, 1926.
1. Was the guardian's sale, as directed and approved by the county court, a forbidden alienation within the meaning of any then existing federal restriction? The plaintiff insists it was and points to the Act of May 27, 1908, c. 199, 35 Stat. 312, as containing the restriction.
The laws of the territory of Oklahoma which were thus put in force 'throughout' the new state included comprehensive provisions for the administration of estates of decedents, the appointment of guardians of minors and incompetents, and the management and sale of their property. In the territory of Oklahoma jurisdiction over these subjects was vested in probate courts and by the Constitution of the new state that jurisdiction was committed to county courts.
The Act of April 26, 1906, c. 1876, 34 Stat. 137, substituted a system of revised restrictions made applicable to all of the Five Civilized Tribes. In section 19 it dealt with restrictions relating to lands of living allottees, and in section 22 with those relating to inherited lands, including, as this court has held, lands allotted in the right of deceased members. 5 Under section 22 the right of full-blood Indian heirs to alienate the inherited lands was subjected to the [295 U.S. 403, 411] restriction that the conveyance be approved by the Secretary of the Interior.
The Act of May 27, 1908, c. 199, 35 Stat. 312, again revised the restrictions and practically substituted its section 1 for section 19 of the act of 1906, and its section 9 for section 22 of that act. Thus, like the act of 1906, it dealt with the restrictions relating to lands of living allottees separately from those relating to inherited lands.
Counsel for the plaintiff place some reliance on that restriction. But there is no basis for doing so. The plaintiff's relation to the land in question was that of an heir, and not that of an allottee. 6 The land was allotted in the right of his deceased grandmother; so she rather than he should be regarded as the allottee.
The first sentence in the quoted part of section 9, where not restrained by the proviso, undoubtedly frees the inherited lands from all restrictions on alienation. But as respects an heir who is a full-blood Indian, the proviso obviously restrains that sentence, and, if taken literally, makes unlawful any conveyance of any interest of such an heir in the inherited lands unless the conveyance be approved by the court having jurisdiction of the settlement of the estate of the deceased allottee. Here the heir was a full-blood Indian. So the question arises, whether the proviso is intended to include a conveyance made pursuant to a guardian's sale, such as was directed and approved by the county court in this instance.
The proviso makes no mention of minors or incompetents under guardianship or of conveyances made by their guardians under the direction of courts having jurisdiction of their estates. Under other acts of Congress, the persons and estates of Indian minors and incompetents in the Indian Territory and the state of Oklahoma have long been subjected to the jurisdiction of local courts; and that jurisdiction is recognized throughout the allotment statutes before described and in section 2 of the act of 1908. True, [295 U.S. 403, 413] that jurisdiction could not be exercised otherwise than in keeping with the laws of Congress relating to such Indians and their lands; but this constitutes no reason for putting aside the statutes granting and recognizing the jurisdiction when a related statute is being emamined and construed.
A similar question respecting the construction and application of the proviso was considered by this court in 1920. The case involved a sale of inherited land by the guardian of minor heirs who were full-blood Creek Indians, the guardian having acted under the order of the court having control of the guardianship; and it was held that the proviso, rightly construed, did not include such a sale.
In principle what was said there is applicable here. That the Indian heir in that case was a minor and in this was an incompetent is not material. The important thing, both there and here, is that the conveyance was made under the direction of the court having jurisdiction of a pending guardianship over the heir's estate. The guardianships were alike in point of congressional authorization and recognition, had like purposes, and were attended by like measures of control.
Plainly the proviso should be read in connection with the statutes whereby Congress authorized and recognized such guardianships and in the light of familiar rules of [295 U.S. 403, 415] construction. Upon such a reading it becomes reasonably certain that the proviso, although couched in general terms, is not intended to include a conveyance made by the guardian of a minor or incompetent heir pursuant to a sale directed and approved by the court having control of the guardianship of the heir's estate.
2. We come then to the contention respecting the application of the state statutes of limitation. It proceeds on the assumption, first, that the guardian's sale was in direct conflict with the federal restrictions on alienation; and, secondly, that the proceedings whereby the plaintiff was brought under guardianship as an incompetent, as also the later proceedings leading to the sale, were not in conformity with the state statutes, and that these irregularities brought the sale in conflict with the restrictions.
We have already shown that the first assumption is not tenable. And we are of opinion the second is ill-grounded.
When Congress subjected Indian minors and incompetents and their estates to the laws of the state in respect of guardianships, it did not thereby incorporate those laws into the federal restrictions. It merely gave its assent to their application to such Indians. The laws remained state laws, as before, and as such were to be applied to these Indians. Congress expressly imposed a limitation fixing stated ages of majority for them. This, of course, put that matter beyond the reach of the state statutes, and the courts of the state have so ruled. Apart from this limitation and some others not material here, the state laws have the same application to Indian guardianships that they have when the wards are minors or incompetents of other races. [295 U.S. 403, 416] Whether the proceedings in such Indian guardianships conform to the state statutes is a question of state, not federal, law. And, in the absence of congressional provision to the contrary, the time and mode of seeking the correction of errors believed to have been committed by the state courts in such proceedings, as also the effect of inaction in that regard, are all controlled by the state laws, as in the instance of other guardianship proceedings.
The defendants hold the rights transferred by the guardian's sale and deed. The deed was filed for record July 12, 1916, and the grantee then went into possession. The plaintiff had then attained his majority, but was under guardianship as an incompetent. That disability and guardianship terminated August 4, 1917. The guardian's sale and deed were not challenged until April 11, 1928, when this suit was begun. In the meantime any right the plaintiff may have had to challenge the sale and deed had become barred by section 1444 and subdivision 2 of 99 of the state statutes of limitation (St. 1931). The bar became effective July 12, 1921, if not August 4, 1920, in that under the operation of those statutes the guardian's sale and deed then ripened into an unassailable title.
1a See Mullen v. Glass, 43 Okl. 549, 143 P. 679; Yarhola v. Strough, 64 Okl. 195, 166 P. 729; Lytle v. Fulotka, 106 Okl. 86, 233 P. 456; Johnston v. Guy, 165 Okl. 156, 25 P.(2d) 625.
[ Footnote 2 ] Act of June 7, 1897, c. 3, 30 Stat. 62, 83.
[ Footnote 3 ] Act of April 28, 1904, c. 1824, 2, 33 Stat. 573.
[ Footnote 4 ] Skelton v. Dill, 235 U.S. 206 , 35 S.Ct. 60; Adkins v. Arnold, 235 U.S. 417, 420 , 35 S.Ct. 118; Talley v. Burgess, 246 U.S. 104, 107 , 38 S.Ct. 287.
[ Footnote 5 ] Talley v. Burgess, supra, 246 U.S. 104, 108 , 38 S.Ct. 287.
[ Footnote 6 ] Harris v. Bell, 254 U.S. 103, 108 , 41 S.Ct. 49.
[ Footnote 7 ] Harris v. Bell, 254 U.S. 103, 108 , 114 S., 41 S.Ct. 49.
[ Footnote 8 ] Harris v. Bell, 254 U.S. 103, 112 , 113 S., 41 S.Ct. 49, 52.
[ Footnote 9 ] Cooley, Const. Lim. (6th Ed.) p. 448.
[ Footnote 10 ] Campbell v. Holt, 115 U.S. 620, 623 , 6 S.Ct. 209, 211.

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Luke begins his second book by summarizing “the first” (the gospel). “Theophilus”, to whom the gospel is written, may be a person (whose name means lover of God) or any reader who loves God. Jesus had chosen “the apostles” (v. 2) from a larger group of followers; in Luke 24 he instructs them. The “many convincing proofs” (v. 3) of his resurrection include his appearances on the road to Emmaus and in Jerusalem. “Forty days” may be just a considerable period of time, or it may, with “not many days from now” (v. 5), point to the coming of the Holy Spirit at Pentecost. The word translated “staying” (v. 4) can also mean eating; in Luke 24, Jesus eats with the disciples. John the Baptiser predicted that the Messiah would baptise “with the Holy Spirit” (v. 5).
An angel has told Mary that “the Lord God will give to him [Jesus] the throne of his ancestor David” so it is not surprising that those present expect political Israel to be restored (v. 6). But Jesus’ answer shows the restoration to be of a different nature (v. 7). When it will be (“the times”) and by what steps (“periods”) he does not say. From the Day of Pentecost on, the apostles will be his representatives, spreading the good news universally (v. 8). Luke describes the ascension physically (like Elijah’s) but includes a divine element, the “two men in white robes”, (v. 10), God’s messengers. Some of the disciples were from “Galilee” (v. 11). The time of the Church will end with Jesus returning as he departed.
This psalm is a hymn celebrating God’s enthronement as king of all nations. It probably dates from the days of David or of Solomon. Vv. 1-4 summon all people everywhere to praise the God of Israel as king. The Israelites gradually changed from recognizing a number of gods, of whom one was chief (“Most High”), to one God. Israel’s “heritage” (or inheritance) is the Promised Land. “Jacob” (v. 4) is Israel. The Hebrew in v. 5 suggests that this psalm was written to accompany a religious ceremony connected with the Ark of the covenant; it dramatized God’s kingship. “His holy throne” (v. 8) recalls Isaiah’s commissioning in Isaiah 6:1. V. 9a, as translated here tells of all rulers gathering as the people of Israel’s God (our God). Gather to is another possible translation, so it may tell of vassal rulers coming to Jerusalem to pay tribute. Either the “shields” in v. 9b are the rulers, or this half verse speaks of peace, i.e. destruction of weapons, as 46:9 says of God: “He makes wars to cease to the end of the earth ... he burns the shields with fire”.
This psalm is a hymn extolling God as king; it deals with the kingly rule of the God of Israel and was probably composed for use in connection with a festival. Mention of Mosaic law (“decrees”) in v. 5 suggests the Festival of Booths, a time when the Law was read to the people. V. 3 speaks of waters raising up and “roaring”. To the ancients, waters were chaotic, very difficult for the gods to control. The gods did battle with them; when the gods had won, creation followed. We find echoes of this in Genesis 1. Here God wins definitively, establishing world order, which “shall never be moved” (v. 1), i.e. changed or defeated. God rules over all of creation, even the forces of chaos. V. 5a recognizes that the Law (“decrees”) are firm and offer dependable guidance (“very sure”). In v. 5b, “your house” is the Temple but the meaning of this half verse in the Hebrew is not clear. It may be saying that the Temple is indeed a holy place, God being who he is and what he has achieved.
After his resurrection, Jesus has appeared to two followers on the road to Emmaus, to Peter, and to those gathered in Jerusalem. When they have thought that they were seeing a ghost, he has invited them to touch his wounds and eats in their presence. Jesus has told his disciples how he is the one to whom the whole of the Old Testament points; he now does so for the last time. (The third part of the Scriptures, the Writings, begins with “the psalms”.) He gives them understanding as to how this is so, interpreting verses from Hosea, Isaiah, Psalms and other books. He charges the disciples (and other followers) with preaching the good news to all people, “beginning from Jerusalem” (v. 47). They are “witnesses” (v. 48); they have seen Scripture fulfilled. The Holy Spirit will be with them, as God promised through the prophet Joel (v. 49). Jesus leads them out (v. 50), as Moses led the people of Israel out of captivity. Here the ascension occurs in a worship setting. Luke ends as it began: “in the temple” (v. 53). Jesus’ ministry on earth has ended; the era of the Church and its mission on his behalf is about to begin.

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It comes as no surprise to those familiar with investment treaty law to see the concept of legitimate expectations continuously refined by case law. One of the facets of legitimate expectations, which is most often the topic of intensive debate in the investment treaty arbitration arena, is the analysis of the extent to which representations of the host State are capable of arousing legitimate expectations. International arbitral tribunals have generally confirmed that representations by the host State may, under certain conditions, generate legitimate expectations that are protected under the fair and equitable treatment standard.
For example, the often-quoted and largely-accepted award in Waste Management, Inc. v. United Mexican States, confirmed the general idea that the representations made by the host State are relevant for the assessment of a potential breach of the fair and equitable treatment standard: “[i]n applying this standard it is relevant that the treatment is in breach of representations made by the host State which were reasonably relied on by the claimant” (¶ 98). Similarly, when analyzing the concept of legitimate expectations, the tribunal in Parkerings-Compagniet AS v. Republic of Lithuania held that “[t]he expectation is legitimate if the investor received an explicit promise or guaranty from the host-State, or if implicitly, the host-State made assurances or representation that the investor took into account in making the investment.” (¶ 82), while the tribunal in Sempra Energy International v. the Argentine Republic highlighted the need to ensure protection of the investor’s legitimate expectations especially “when the investment has been attracted and induced by means of assurances and representations” (¶ 298).
This is not to say that any kind of representation, assurance, promise or guarantee from the host State can trigger legitimate expectations that fall under the protection of the fair and equitable treatment standard. Rather, such encouragement must be specific and unambiguous in the sense that the host State must channel its incentives towards a specific investor to perform a specific investment. For example, in Metalclad Corporation v. the United Mexican States the tribunal held that the repeated promises of “federal officials” that the administrative authorities would grant a specific construction permit, which would have allowed Metalclad to complete the construction of its waste landfill in Guadalcazar, Mexico, entitled the investor to legitimately expect that its investment would go through: “Metalclad was entitled to rely on the representations of federal officials and to believe that it was entitled to continue its construction of the landfill. In following the advice of these officials, […] Metalclad was merely acting prudently and in the full expectation that the permit would be granted.” (¶ 89).
The allegedly-misleading representations by the host State was one of the main points of focus of the tribunal in Bilcon of Delaware Inc. et al v. Canada in its recent award on jurisdiction and liability of 17 March 2015.
Bilcon of Delaware Inc., a member of the Clayton Group controlled by Mr. William Ralph Clayton, and his three sons, Messrs. William Richard Clayton, Douglas Clayton and Daniel Clayton, had planned to invest in Nova Scotia by developing a quarry and marine terminal at Whites Point quarry, in Digby County, Nova Scotia.
The decision to invest was to a large extent, as alleged by the investors, influenced by the fact that Nova Scotia had a publicly-stated policy of encouraging investment in the mining industry, as well as by the repeated encouragements from various state officials, who were aware of Bilcon’s interest to develop the mining project at Whites Point and who actively supported Bilcon’s intention to invest in the project.
The perfect picture painted by the authorities quickly started to dismantle once the investors applied for an environmental permit to build the prospective quarry. After several years during which the investors’ repeated attempts to reach common grounds with the regulatory authorities failed, the project was referred to a Joint Review Panel (JRP), which was entrusted with determining the environmental impact of the quarry. The JRP did not recommend the implementation of the project on account of potential environmental risks and inconsistency with “community core values”.
The investors alleged that there was “inappropriate political interference in the regulatory process” and that although they had made every possible effort to address each and every environmental-law concern by submitting a substantial Environmental Impact Statement of over 3000 pages, approval was still refused. Such refusal, the investors argued, was politically motivated. Even more, they alleged that the JRP-assessment hearing denied Bilcon a reasonable opportunity to present its case and particularly focused on the so-called “community core values”, a factor that did not fall within the scope of an environmental impact assessment under the laws of federal Canada or Nova Scotia.
After extensive analysis regarding the proper interpretation of NAFTA Article 1105, the majority of the arbitral tribunal chaired by Judge Bruno Simma concluded, over a prominent dissent, that Canada’s conduct was in breach of the international minimum standard of fair treatment placing particular focus on the investors’ reasonable expectations generated by the host State’s repeated encouragements.
Specifically, the tribunal made reference to several aspects such as: (i) the fact that the official public policy of Nova Scotia was to welcome and strongly support investment in mining; (ii) the fact that Nova Scotia’s technical officials met with the investors’ representatives and encouraged them to invest and establish marine quarries in the region; (iii) the fact that the Nova Scotia’s Minister for natural resources specifically confirmed his support for the White Point quarry; and (iv) the fact that Canada’s officials led the investors to believe that any potential environmental-law concerns could be addressed through a fair process whereby they would be given the opportunity to find ways to mitigate or prevent any potential environmental impact by adjusting their project design.
Professor Donald McRae dissented from the majority’s view on the violation of NAFTA Article 1105 and held that the actions of the JRP were, in fact, not arbitrary. Professor McRae took issue with the majority’s treatment of “community core values”, which, in his opinion, equated a potential breach of Canadian law to a breach of the international minimum standard of treatment. In taking this view, the dissent concluded that the conduct of state officials is irrelevant for the purpose of assessing Canada’s breach of article 1105 since this could have not triggered a “legitimate” expectation that the project would be approved regardless of its compliance with local law. Rather, the dissent notes, the only expectation could have been that Bilcon would have Canadian law applied properly to it.
Undoubtedly, the dissent is correct to point out that potential violations of domestic law cannot be equated to violations of the NAFTA investment-protection standards. In fact, the members of the tribunal unanimously agreed that there is a rather high standard for finding a breach of NAFTA Article 1105, which calls for a finding of arbitrary conduct on behalf of the host State, as set out in Waste Management.
A significant part of this standard is the analysis of the legitimate expectations triggered by the representations made by the host State. The dissenting opinion, however, discards ab initio such representations as being irrelevant for the purpose of assessing the violation of NAFTA Article 1105. In doing so, the dissent omits to factor in the process leading up to the JRP and the conduct of the state officials before this point in the assessment of the prospective investment. It is such particular conduct and the repeated assurances from various technical and political officials that the project would pass any environmental-law hurdles which made it reasonable for the investors to expect that the White Point quarry would soon become reality.
Evidently this could have not created any expectation as to the final result of the assessment conducted by the JRP, as correctly noted by Prof. McRae. Nonetheless, one may not simply turn a blind eye to the fact that the assurances and encouragements came from Canada’s political and technical officials, who presumably had an understanding of the relevant legal framework and the environmental implications of the project, thus making it reasonable for the investors to assume that their investment would eventually see the light of day. These circumstances cannot be simply dismissed as irrelevant without a thorough analysis of the implications such may have in the assessment of the breach of the minimum standard of treatment.
In any event, leaving aside the disagreement between the members of the tribunal as to the manner in which the JRP conducted its assessment, Bilcon of Delaware Inc. et al v. Canada confirms that host State representations, assurances or promises aimed at persuading a specific investor to make an investment commitment may give rise to reasonable expectations that can result in, or at least serve as starting point for a breach of the international minimum standard of treatment if the State does not live up to its word.
These findings are all the more important considering the abundance of investment treaty disputes related to the mining sector. There are more than 130 cases registered with ICSID alone that deal with oil, gas and mining disputes and broken promises by host State officials is a recurring issue. While one may understand the desire of capital importing states to attract foreign investments, this does not excuse arbitrary conduct of domestic authorities nor does it excuse the State from observing its international obligations regarding the protection of legitimate expectations. Certainly, a lesson to be learnt from past experience is that encouragements to invest by state officials should not be taken lightly especially when environmental-law concerns are at stake.
Thanks for an interesting analysis. It will be interesting to see how the consideration of “encouragement” factors into such cases from now on. Will governments refrain from encouraging foreign investors, or will they refrain from applying their environmental laws in a way that limits or rejects their projects? Perhaps especially because I have visited the Digby Neck several times in the past 40 years, I confess that I am appalled with the Clayton/Bilcon decision, but for much broader reasons. Why are three arbitrators in an obscure and opaque process (that is, detached from key aspects of rigorous rule of law) allowed to shift public resources to private investors, based essentially on the view that a government did not apply its environmental law properly? Yet, even in the narrow range of vision of the panel, I wholeheartedly agree with Don MacRae’s dissent.
This is helpful and illuminating. But the uncomfortable truth is that trade and investment law is indifferent to public interest, intimidating to democratic policy-making and supported by an arbitration process more comfortable advising on private rights than public interests. As the EU Trade Commissioner, Celia Malmstrom, says this really must change: http://europa.eu/rapid/press-release_IP-15-5651_en.htm.

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Status of development and outlooks of joint replacement procedures in Ukraine were analyzed. It is noted that under the auspices of the Ministry of Health, the National Academy of Medical Sciences, and the Association of Orthopaedic Surgeons and Traumatologists of Ukraine there were established and actively deal some regional centers in Kiev, Kharkov, Dnepropetrovsk, Donetsk as well as regional and city centers equipped with modern kinds of endoprostheses and instruments. There are qualified surgeons experienced on joint replacement, anesthesiologists and rehabilitation specialists working there. Over the past 5 years the specialists of these centers for improvement of their skills have been trained in leading hospitals in Ukraine, Europe and America. Many of anesthesiologists, rehabilitation specialists as well as nurse practitioners and other medical staff also were trained, and this significantly improved the quality of joint replacement procedures as a whole, and social adaptation of the patients.
Ongoing researches on the development of novel domestic endoprostheses keep doing. At the Sytenko Institute for Spine and Joints Pathology of the National Academy of Medical Sciences of Ukraine along with the SPA "Monocrystal" and the LLC "Sumaral-Med" a novel construct of hip endoprosthesis with friction pair of monocrystalline corundum (sapphire) was developed and passed clinical testing. In Kiev at the Institute for Orthopeadics and Traumatology of the National Academy of Medical Sciences of Ukraine construct of total revision hip cementless endoprosthesis with modern titanium covering, perfect anatomical shape and wear resistant pair of friction with ceramic head was designed.
Despite on a special computer program called "Register" established in Ukraine which allows you to enter information about the operations of replacement without too much difficulties an issue on registration and analysis of outcomes of surgeries performed remains open and unresolved. Further strengthening of the material-technical base of the centers for joint replacement procedures and for the departments of orthopedic and trauma in the regional hospitals is important for solving this problem.
An issue on annually increasing amount of revision joint replacement surgeries remains complicated and unresolved. For instance, in the Western Europe the number of revision cases is about 20%. Analysis of this situation made at the Sytenko Institute for Spine and Joints Pathology indicates that the number of revision cases in Ukraine does not exceed 10%. This is a worrying signal for the future. Fitting up with revision systems, instruments and properly trained professionals presents an acute problem. Rehabilitation centers for patients with endoprostheses of the large joints existing in Ukraine have not yet fully ensure process of treatment which also requires solutions. It was proposed to create the state research program "Revision hip and knee joints replacement in Ukraine" within which provision of the existing centers with necessary medical equipment, instruments and metal artificial joints will be substantiated, and development and manufacturing of surgical instruments for systems in revision cases based on domestic producers will be planned. All of this will allow improving the quality of life of the patients.
Gaiko G. V. Condition joints endoprosthesis in Ukraine and its future outlook / G. V. Gaiko: material scientific-practical. conference with international participation ["total revision and replacement of large joints"] (Lviv, October 2-4, 2003). — Kyiv, Lviv, 2003. — Р. 3-7.
Status and Prospects of joints endoprosthesis / G. V. Gaiko, S. I. Gerasimenko, M.V. Polulyakh, V. P. Torchynskyy: Abstracts XIV Congress of Orthopaedic trauma Ukraine (Odessa, 21-23 September 2006 ). — Odessa, 2006. — P. 423-425.
Gerasimenko S. I. Our experience of revision hip arthroplasty / S. I. Gerasimenko, M. V. Polulyakh, V. M. Gromadsky: materials scientific-practical. conference with international participation ["total revision and replacement of large joints"] (Lviv, October 2-4, 2003). — Kyiv-Lviv, 2003. — P. 16-19.
Korzh N. A. Рroblem arthroplasty in Ukraine and ways of its solution / N. A. Korzh, V. A. Filipenko, V. A. Tankut // Orthopedics, Traumatology and Prosthetics. — 2008. — № 2. — P. 5-9.
Kosyakov O. M. Dosvіd revіzіynogo endoprotezuvannya kulshovogo Suglob at aseptichnіy nestabіlnostі endoproteza / O. M. Kosуakov, O. O. Kostrub, P. V. Bulich // Orthopedics, Traumatology and Prosthetics. — 2008. — № 1. — Р. 26-29.
Loskutov A. E. Total hip replacement in dysplastic coxarthrosis / A. E. Loskutov, M. L. Golovakha // Orthopedics, Traumatology and Prosthetics. — 1998. — № 3. — P. 122-123.
Loskutov A. E. Bilateral hip sutavov / A. E. Loskutov, D. A. Sinegubov. — Dnipropetrovs'k: Thresholds, 2008. — 220 p.
Kaddick C. Implant wear and aseptic loosening. An overview / C. Kaddick, I. Catelas, P. H. Pennekamp, M. A. Wimmer // Orthopade. — 2009. — Vol. 38, № 8. — Р. 690–697.
The Swedish national hip arthroplasty register: [Summary of annular report 2004] / Department of orthopedics Sahlgrenska university hospital. — Göteborg, 2005. — P. 27.

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n o,m. occas. ā,f. reed, cane, broom : gilcach quia locis in gelidis nas[c]itur , Corm. Y 704 . Cf. O'Mulc. 653 . gl. arundo, Ir. Gl. 933 . gl. genista, Arch. i 335.83 . in gilcach genestula, RC ix 235.43b. getal .i. gilcach, Auraic. 5521 . One of the `losa feada,' Laws iv 148.2 . lūth leighe .i. gilcach ar imat a īcce, Anecd. iii 43.19 . críonfuidh an giol- cach agus an soileastar, Is. xix 6 . g s. coirt gilcaighe, O'Don. Suppl. (fr. Med. Ms.). croicinn gilcaighi, Irish Texts v 82.25 . a maide giolcuighe briste `bruised reed,' Is. xxxvi 6 . slat ghiolcuigh, Matt. xxvii 29 . pl. na giolcuigh pháipéir papyrus reeds, Is. xix 7 . An g.¤ sléibhe gl. genestula ; giolcach nimhe = butcher's broom, P. O'C.
n (1 gel) iā,f. whiteness, brightness : a glaine ... a gile, LU 2482 . nicon fil locht and isind fir sin ... e[ter] rosc ┐ folt ┐ gili, LU 7473 ( BDD § 102 ). SR 2935. TBC 5436 . Fél. Feb. 5. Ep. 222 . in corp do rogili, TBFr. 219 . co ṅgili glacc white-handed , LL 202a60 . co ngile gné `radiant of beauty,' Met. Dinds. iii 198.25 . rop adhaigh dur degh-gille of good light, Ir. Arch. Soc. i 30.z . npr f. : bai ingen la Romra .i. Gili a hainm, Dinds. § 138 ( RC xvi 146.1 ).
n the spike or spear forming the central boss of a shield (?) (see Mann. and Cust. i cccclxix ) : gilech cúach cóicrind ar a dur[n]d derglassid, LU 8602 ( FB § 45 ).
n n s. gilldæ, Corm. Y 676 , 1059 ( p. 93.11 ) ; also gille, IGT Decl. exx. 1136 , 1405 , 2130 ; cf. gilli (: fīrindi), Arch. iii 246.7 ; gille (: imme), Aisl. MC 69.30 . n p. gailli (subscript a), gaille, ZCP xxvii 43 (B) . io,m. A word of pre-Norse origin, prob. from Latin. See Pokorny, ZCP xii 298 ff. ; Marstrander, ib. 309 ff.
(a) a youth of an age to bear arms ; one who has arrived at the third of the six ages of man (for which see gillacht) : Dauid in gille dáne, Hy. i 12 . gilla oac amulach, LU 3825 ( SC § 37.14 ). TBC 265 . do gilli no óclig, Mon. Tall § 41 . v s. cucainn cetna thanacais do chétgasciud, a gillai, IT i 103.9 . a gilli, LU 3535 ( SC § 29 ). a ghille ... doní uaill as do ghile, A. Ó Dálaigh xliii 2. As a contemptuous mode of address : creud as creidemh dhuitsi, a ghiollaidh thall, Luc. Fid. 182 . pl. a ṅgillai óca, CRR § 34 . gilde ┐ ócláoich, Mon. Tall. § 48 . a gillu Connacht, IT i 106.21 (LL). chethirn ṅ-gilla, TBC 5762 . gialladh do ghillaibh óga giving youths as hostages, AU ii 540.17 . tri chet do gillib occa, TTebe 1468 . tuc Ráp ... aeghaidhecht do ghilladaib Israel (of the spies), ZCP ii 52.9 ( Maund. § 90 ). atconnarc gillu glána, LU 3767 ( SC § 34 ).
(b) Sometimes (with or without `bec') used as the equiva- lent of `mac,' a male child, a boy : in gilla bec mo dalta sa, TBC 842 , gilla, TBC² 514 = mac bec, TBC 1015 . Cf. also TBC² 508 , 537 with TBC 989 , 1046 respectively. ba gilla bec, LL 226b28 ( TTr. 700 ). PH 1366.
(c) Used of a pupil : gilldæ .i. is fri gil is cosmail. ... issē dono bēssad in gilla tosugud (do ṡugud, LB) forcetail do t[h]engaid a fithidire, Corm. Y 676.
(d) a servant, a gilly, a messenger : gilla a cillus, graece manus unius, ar is lām do cach áon a gilla, Corm. Y 702 . Cf. O'Mulc. 654 . a gilla laiss .i. ēcsīne ēiside co menmuin fithidire lais, Corm. Y 825 . ro chuir in gilla na eocho hi fergort, LU 8514 ( FB § 36 ). TBC 3295 . TBC² 2468 . ro-fhóid tra Iacop a gilla, PH 2193 . C. giolla gradha do Brian `confidential officer,' Cog. 102.19 . gilla Crist (gl. Christianus), Ir. Gl. 523 . gilla ... nó timtirid, Mon. Tall. § 37 . pl. ferr lais feis la gillib to sleep with his servants, Laws v 292.22 . daescurṡluag ┐ gillida fedma `drudges,' Acall. 5627 . CRR § 28 . gilli na sluag `horse-boys,' Cog. 82.7 . giollaidhe an tsluaigh `camp-followers,' Keat. iii 3199 . daill iad ┐ giolladha dall = duces caecorum), Mac Aingil 401 . With a defining gen. of the work allotted or the service performed : g.¤ adhairce (gl. cornicen), Ir. Gl. 1018 . g.¤ con a kennel attendant, Laws v 72.29 . ZCP xiii 254.16 . g.¤ cupáin cup-bearers , 1 Kings x 5 . g.¤ na-n-each (gl. mango), Ir. Gl. 946 . Cf. Ériu iii 141.196 . BColm. 102.2 . IGT Decl. ex 2130 . g.¤ an eich, TD 22.17 . gille echraide grooms , RC xliii 26 § 25 . g.¤ na fi[d]chli chess-board attendant, Acall. 1344 . g.¤ na filed .i. g.¤ urraith .i. i cometecht caich bis a bailiu i mbailiu, Laws i 106.10 Comm. ; 'baggage-boy' UR 133 . g.¤ gái a spear-gilly , SG 66.1 . marbus g.¤ in gái .i. in callaire sergeant (?), 76.9 . g.¤ glomair horse-boy , Laws v 72.29 Comm. g.¤ an ghobanno the boy who feeds the smith's furnace : fuaradh ghiolla an ghabhann (prov. saying), TSh. 6206 . g.¤ scuir a stud-groom, a stableman , Acall. 778 . g.¤ tened one who attends to the fires, SG 354.33 . g.¤ turusa a messenger : cursúr .i. gilla turusa, PH 2601. Laws v 72.29 Comm. g.¤ urláir a household servant, Laws v 72.29 Comm. Cf. echlach urláir, Ériu ix 15.
(e) Commonly used from the close of the 10th cent. as the first element of masc. proper names, foll. by gen. of npr. (saint or other), see Marstrander, ZCP xii 313 . Gillacolaim, AU i 488.16 (an. 976). G.¤ Patraic, 492.22 (an. 982). G.¤ Ciarain, Caithr. CC. § 53 . G.¤ na Trinódi hUa Dálaigh, RC xviii 270.1 . For further exx. see AU (Index) : FM iii 2-3 n. and Heldensage (Index). Also (accompanied by a descriptive adj. or gen.) used as npr m. or sobriquet : G.¤ Bec, Rawl. 159a14 . G.¤ Luaithrindi, Lec. 57rb16 . In G.¤ Leith- derg O Concobair, RC xviii 276.25 . See also Dubgilla, Crōngilla, Gormgilla, ZCP xiii 1 - 2 .
n (gilla) a youth : a gillacāin ga[i]b sīan seng 'o boy, sing a slender air' Ériu xix 78 § 8 . Poss. npr. xix 80 .


5. The carrying and use of firearms and other weapons provided in this subsection when used for the purpose of living history reenactment. For purposes of this paragraph, “living history reenactment” means depiction of historical characters, scenes, historical life or events for entertainment, education, or historical documentation through the wearing or use of period, historical, antique or vintage clothing, accessories, firearms, weapons, and other implements of the historical period.
B. Any person convicted of violating the foregoing provision shall be guilty of a misdemeanor punishable as provided in Section 1276 of this title.
R.L.1910, § 2546. Amended by Laws 1957, p. 163, § 1; Laws 1969, c. 311, § 1, emerg. eff. April 28, 1969; Laws 1993, c. 309, § 1, emerg. eff. June 7, 1993; Laws 1995, c. 272, § 26, eff. Sept. 1, 1995; Laws 1996, c. 191, § 2, emerg. eff. May 16, 1996; Laws 2003, c. 465, § 1, eff. July 1, 2003; Laws 2007, c. 128, § 1, eff. Nov. 1, 2007; Laws 2012, c. 259, § 1, eff. Nov. 1, 2012; Laws 2013, c. 102, § 1, eff. Nov. 1, 2013.
NOTE: Laws 1993, c. 264, § 1 repealed by Laws 1994, c. 2, § 34, emerg. eff. March 2, 1994.
It is in use for the purposes of historical reenactment.