JESSICA FUREY, Employee, v. GRAND ITASCA CLINIC & HOSP., and RTW, INC., Employer-Insurer/Appellants, and SMDC HEALTH SYS. and OPERATING ENG=RS LOCAL 49 HEALTH & WELFARE FUND, Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
DECEMBER 5, 2006
GILLETTE INJURY - DATE OF INJURY. Substantial evidence supported the judge=s finding as to the culmination date of the employee=s Gillette injury, where the date chosen by the judge was the first date on which a physician connected the employee=s condition to her work and the first date on which a physician recommended restrictions that precluded the employee from performing her usual job.
Determined by Wilson, J., Rykken, J., and Pederson, J.
Compensation Judge: Jerome G. Arnold
Attorneys: David J. Ewens, David J. Ewens Law Office, Grand Rapids, MN, for the Respondent. Kathleen S. Bray, Hanft Fride, Duluth, MN, for the Appellants.
DEBRA A. WILSON, Judge
The self-insured employer appeals from the judge=s findings as to the culmination date of the employee=s Gillette injury. We affirm.
The employee began work as a licensed practical nurse for Grand Itasca Clinic [the employer] on January 17, 2000. In June of 2003, the department in which the employee worked relocated, and, in the new work area, the employee had to stand at her work station and to navigate a long hallway to perform her job duties. As a result, the employee was on her feet most of the work day.
By October of 2004, the employee had begun noticing symptoms of pain in both of her feet/heels. She first sought medical treatment on December 7, 2004, with podiatrist Dr. Curt A. Kristensen. His office notes reflect that the employee was complaining of pain in both heels, left greater than right, that she indicated she did a lot of walking and standing in her job, and that her pain was worse at the end of the work day. The employee also related that she frequently walked barefoot indoors, and she denied trauma or injury. The employee was advised to wear shoes as much as possible, and it appears that Dr. Kristensen injected the employee=s right heel on that date. When she returned to Dr. Kristensen on March 28, 2005, the employee reported that she had done extremely well following the injection but had intense pain in the bottom of her left heel. Dr. Kristensen administered steroid injections of the left heel on that date and again on May 9, 2005. His diagnosis was mononeuritis and moderately severe plantar fasciitis.
A bone scan was performed on August 1, 2005, and the employee was seen by Physician=s Assistant Bernice Kane, in the orthopedics department of the employer, on August 2, 2005. Ms. Kane=s office notes reflect that she spoke with the employee about the cause of the heel pain, Awhich certainly would be related to excessive walking for long periods and definitely an overuse syndrome and work related injury.@ Ms. Kane=s diagnosis was chronic plantar fasciitis, with a possible calcaneal stress fracture, and she recommended casting of the left foot and no weight bearing for six weeks. The cast was applied and the employee was assigned work restrictions. The employee reported a work injury to her supervisor on August 2, 2005.
The employee worked within her restrictions until September 2, 2005, at which time her workers= compensation claim was denied and the employer determined that it could no longer provide her with light-duty work. The employee was unable to work because of her foot condition from September 2 through November 17, 2005.
The employee filed a claim petition on September 30, 2005, claiming that she had sustained a Gillette injury to her left foot on September 1, 2005, and seeking temporary total and permanent partial disability benefits, medical expenses, and rehabilitation benefits. In its answer, the employer denied primary liability, disputed the date of injury, and asserted that the employee had failed to give timely notice.
On February 11, 2006, the employee was examined by Dr. Lance Silverman, at the request of the employer. In a report dated February 20, 2006, Dr. Silverman diagnosed left chronic, recalcitrant plantar fasciitis and left tarsal tunnel syndrome, with predominant involvement of the medial plantar nerve. It was Dr. Silverman=s opinion that the employee=s work activities substantially contributed to her plantar fasciitis.
On April 2, 2006, Ms. Kane issued a report in which she opined that the employee had sustained a Gillette injury on August 2, 2005, stating, A[t]his is when her pain was severe enough where she was no longer able to perform her work activities. Her work activities exacerbated her symptoms to the point where immobilization was necessary.@
When the matter proceeded to hearing on April 27, 2006, the employee amended her claim petition to claim an injury date of August 2, 2005. In findings and order filed on June 13, 2006, the compensation judge found that the employee had sustained a Gillette-type injury to her left lower extremity culminating on August 2, 2005. The employer appeals.
STANDARD OF REVIEW
On appeal, the Workers' Compensation Court of Appeals must determine whether "the findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted." Minn. Stat. ' 176.421, subd. 1 (2004). Substantial evidence supports the findings if, in the context of the entire record, "they are supported by evidence that a reasonable mind might accept as adequate." Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984). Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed. Id. at 60, 37 W.C.D. at 240. Similarly, findings of fact should not be disturbed, even though the reviewing court might disagree with them, "unless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.@ Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).
The employer contends that the employee=s injury culminated on December 7, 2004, and that the judge=s finding of a culmination date of August 2, 2005, Ais inconsistent with the purpose of the statutory notice provisions to provide reasonable notice to the employer of a work-related condition.@ We are not convinced.
In Carlson v. Flour City Brush Co., the Minnesota Supreme Court held that Ainjuries resulting from repeated trauma or aggravations of a pre-existing condition [i.e., Gillette injuries] result in a compensable personal injury when their cumulative effect is sufficiently serious to disable the employee from further work.@ 305 N.W.2d 347, 350, 33 W.C.D. 594, 598 (Minn. 1981). However, in Schnurrer v. Hoerner-Waldorf, the court clarified that ACarlson does not require an automatic determination that the employee sustained Gillette-type injuries on the day he quit work@; rather, A[t]he time by which he had sustained those injuries should be determined on all the evidence bearing on the issue.@ 345 N.W.2d 230, 233, 36 W.C.D. 504, 509 (Minn. 1984). In Schnurrer, the court found that there were several Aascertainable events@ that established that the employee had been disabled prior to the date he actually quit his job. And, in Shaffer v. The Minnesota Orchestra, 53 W.C.D. 341 (W.C.C.A. 1995), this court affirmed a compensation judge=s finding that the employee=s Aultimate breakdown@ had occurred on the date on which medical treatment was first required, in a case in which the employee was never disabled from performing her regular work.
While the employer contends that the employee=s Gillette injury culminated on December 7, 2004, it is important to note that the employee was claiming a Gillette injury to her left foot only. The employee=s testimony and Dr. Kristensen=s office notes suggest that the employee was treating primarily for her right heel on December 7, 2004, and it was not until March 28, 2005, that the employee received specific treatment to the left foot/heel.
Ultimately, a finding as to the timing of a Gillette injury is one of fact. Pettis v. Metal Matic, slip op. (W.C.C.A. Jan. 18, 2000). In the instant case, the employee=s testimony and Ms. Kane=s report reasonably establish that the employee=s work continued to aggravate her left heel condition up until Ms. Kane first examined the employee on August 2, 2005. In addition, August 2, 2005, was the first date that any doctor had connected the employee=s left heel condition to her work and the first date that any doctor had recommended physical restrictions that prevented the employee from performing her regular work. Clearly these were ascertainable events that would allow the compensation judge to conclude that the employee=s Gillette injury to her left heel culminated on August 2, 2005. There being substantial evidence to support the judge=s finding as to the culmination date of the Gillette injury, we affirm the findings in their entirety.
 See Gillette v. Harold, Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960).
 The compensation judge also made findings concerning alcohol therapy injections and a recommended surgery. The employer appealed from those findings, but they were not briefed and are therefore deemed waived. Minn. R. 9800.0900, subp. 2.
 In Schnurrer, the court found that the modification of job duties due to a doctor=s restrictions was sufficient to constitute the culmination of a Gillette injury.
 The employee testified that her left heel pain Ajust came on gradually, ups and downs, peaks and valleys. It would get better some days, worse other days, until mid >05 where I didn=t seem to get any relief.@
 The employer also argued that the employee failed to provide timely notice of her injury of December 7, 2004. Because we have affirmed the judge=s finding of an August 2, 2005, injury, and because the employee gave notice to the employer on that date, the employer=s argument is without merit.