JAMES SENFTNER, Employee/Appellant, v. BIMBO BAKERIES USA, INC., and ACE USA, Employer-Insurer/Respondents, and TWIN CITIES BAKERY DRIVERS HEALTH AND WELFARE FUND, Intervenor.

The employee appeals the compensation judge’s denial of his claim for workers’ compensation benefits.  We affirm.

The employee, James Senftner, started working as a route sales professional for the employer in March 1990 when he was 31 years old, in fairly good shape, and without any knee symptoms or need for medical care regarding his knees.  His job duties involved taking orders from customers, mostly retail stores and schools, and delivering bakery products to those customers.  He began his typical workday at 3:00 a.m. by loading his vehicle, and then delivering the products and taking additional orders.  He usually worked five days a week, about 10 hours per day.  A typical day involved stopping at 8 to 10 stores, with up to 14 stops when schools were in session.  Some stops were completed in 15 minutes, while others lasted as long as two hours.  At each store, he would bring new products from his truck to the aisle, remove stale products, and stock shelves.  When stocking and rotating products on the lower shelves, he would kneel and squat rather than bend.  This kneeling and squatting would last up to 15 minutes at a time and up to 60 to 90 minutes every workday.  Eventually, the employee began developing knee pain.  During his last five or six years working, he used knee pads to alleviate this pain.

The employee started intermittently seeing doctors for knee pain in 2010, relating his symptoms to kneeling and squatting on the job.  On March 23, 2016, the employee began a course of care with Paul Diekmann, M.D., for his bilateral knee symptoms.  His left knee was giving him more pain at that time and he was complaining of increased pain with getting in and out of his truck frequently, driving, and kneeling on the job.  The employee told Dr. Diekmann that he had “lots of wear and tear” on his knee.  (Ex. B.)  Based on x-rays, Dr. Diekmann diagnosed severe bilateral degenerative arthritis which was essentially bone-on-bone and would ultimately lead to total knee replacements.  The employee stated that he hoped to delay any surgery until he reached retirement age.

The employee returned to Dr. Diekmann on February 22, 2017.  He told Dr. Diekmann he did not want to have surgery yet and was hoping other treatment might help with his knee symptoms.  X-rays again showed bone-on-bone degenerative arthritis.  The employee received bilateral steroid injections for his knees.

The employee next saw Dr. Diekmann on July 26, 2017.  He reported that the injections from the previous February provided about two months of relief.  He told Dr. Diekmann that the pain had progressively increased and was worse with kneeling.  He again received bilateral steroid injections and again expressed his understanding that bilateral total knee replacement was in his future, but he still wished to delay surgery as long as possible.

The employee again presented to Dr. Diekmann on April 11, 2018.  He reported that the injections he received in July 2017 lasted for about one to two months, that the pain was now constant and interfering with his daily life, and that he still wanted to explore other options before surgery.  X-rays of his knees continued to reveal marked and worsening degenerative arthritis bilaterally.  Because steroid injections were no longer of benefit, the employee received Synvisc injections.  The employee again indicated that he knew total knee replacements were coming soon.

The employee returned to Dr. Diekmann on September 6, 2018.  He reported that the Synvisc injections were of no help and that while he was willing to try other options before surgery, if there were no such options, he would consider surgery.  Dr. Diekmann prescribed an unloader brace for the more symptomatic right knee, and determined that if this proved to be helpful, he would prescribe a similar brace for the left knee.  He also recommended a minimum of six weeks of physical therapy to be done at least one to two times per week as well as home exercises.  Dr. Diekmann wrote that the employee “is going to explore the possibility of his knee arthritis being at [sic] Gillette^[1] type injury related to his years of truck driving activity.”  (Ex. B.)  The employee testified that he mentioned a Gillette injury to Dr. Diekmann because his wife, who had worked as a safety director, informed him about such claims.  (T. 45-46.)

The employee next saw Dr. Diekmann on June 5, 2019, reporting that his pain was even worse than the previous September.  While the unloader brace on the right provided some relief, he was limping all the time and frustrated by his increasing pain.  He was having more difficulty doing his job, particularly stooping and squatting, and his quality of life was unacceptably limited.  He wanted to talk about having surgery.  Dr. Diekmann noted that all non-operative care had been exhausted and that the only remaining treatment was total knee replacement, with the more symptomatic right knee to be surgically repaired first.  Dr. Diekmann also recorded his opinion that the employee’s work was a substantial factor in causing the bilateral knee arthritic condition.

Shortly after this visit with Dr. Diekmann, the employee reported the work injury to his employer, which then completed a first report of injury.  On August 1, 2019, the employer and insurer completed a notice of primary liability determination, stating that the cause of the employee’s bilateral knee condition was unknown, and denied liability because his work was not a factor.

The employee underwent right total knee replacement, performed by Dr. Diekmann at Mercy Hospital, on August 19, 2019.  This was the first time the employee lost any time from work due to his knee symptoms.  The surgery was successful.  The employee testified that his left knee is still troublesome and that he would eventually have the left knee replacement surgery.

Dr. Diekmann sent a narrative report to the employee’s attorney dated April 27, 2020, opining that the frequent stooping, squatting, and kneeling the employee did at his job for 30 years was a substantial contributing cause of aggravation and acceleration of his bilateral knee degenerative arthritis.  Dr. Diekmann reiterated this opinion in his deposition.  (Employee’s Ex. A, Diekmann Dep. pp. 13-14.)

The employer and insurer had the employee examined by Edward Szalapski, M.D., who completed a report dated January 17, 2020.  He later completed a follow-up report dated August 7, 2020.  Dr. Szalapski expressed the opinion that the employee’s work activities did not cause, aggravate, or accelerate his bilateral knee condition as the employee did not do any frequent kneeling or stooping on the job.

The employee filed a claim petition alleging a Gillette injury to his knees occurring on June 14, 2019, the date he gave notice to the employer, or alternatively August 19, 2019, his first day of lost time from working due to his knees.  A hearing took place before a compensation judge on August 13, 2020.  The compensation judge noted that the issues to be considered included whether the employee had sustained a work injury on or about August 19, 2019, and whether he provided proper notice.

The compensation judge issued his Findings and Order on October 12, 2020.  The compensation judge adopted Dr. Diekmann's opinion regarding causation as persuasive and determined the employee sustained a bilateral knee Gillette injury which culminated on September 6, 2018, the date the employee discussed a Gillette injury with Dr. Diekmann.  The compensation judge denied the employee’s claims, finding he had failed to comply with the notice requirements under Minn. Stat. § 176.141.  The employee appeals.

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(3).  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 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).

A decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which the Workers’ Compensation Court of Appeals may consider de novo.  Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993), summarily aff’d (Minn. June 3, 1993).

The compensation judge found the employee suffered a Gillette injury culminating on September 6, 2018, but because the employee did not notify the employer of his work injury within 180 days of that date, his claims were barred by Minn. Stat. § 176.141.  The employee maintains that the compensation judge erred in the choice of the date of the Gillette injury, that the “correct” date of injury was later, and that he gave his employer timely notice of his work injury.  We are not persuaded by the employee’s arguments.

The date a Gillette injury culminates is not a medical question but a fact question for the compensation judge and should be affirmed if supported by substantial evidence.  Lopez v. Dura Supreme, Inc., 70 W.C.D. 179 (W.C.C.A. 2010); Reel v. Loftness Specialized Farm Equip., slip op. (W.C.C.A. Feb. 3, 2004).  Because Gillette injuries do not occur at a specific time and date, the date a Gillette injury culminates is when the cumulative effect of the work duties on the employee’s physical condition is sufficiently serious to disable the employee from working.  Carlson v. Flour City Brush Co., 305 N.W.2d 347, 350 (Minn. 1981).  The supreme court later explained that the “ascertainable event” sufficient to trigger the culmination of a Gillette injury is not necessarily the first date of lost time from work due to the injury, and that other events may serve as the culmination date of a Gillette injury.  Schnurrer v. Hoerner-Waldorf, 345 N.W.2d 230, 233 (Minn. 1984).  The determination of which ascertainable event triggers the culmination of a Gillette injury is also a question of fact for the compensation judge considering all the evidence bearing on the issue.^[2]

Here, the compensation judge found that the employee’s Gillette injury culminated as of September 6, 2018.  On that date, the employee described the ineffectiveness of Synvisc injections and Dr. Diekmann first prescribed a knee brace and physical therapy.  These medical modalities were last efforts suggested by Dr. Diekmann before the inevitable total knee replacement surgery.  While there could have been any number of other dates selected as the culmination of the employee’s Gillette injury, including the first date of medical care or, as suggested by the employee, the date Dr. Diekmann opined that a Gillette injury had occurred, which was also the date the employee decided to have surgery, or alternatively his last date of work before the first knee replacement surgery,^[3] our role is not to pick a “better” date, but to determine whether substantial evidence supports the fact finding of the compensation judge.^[4]  We hold substantial evidence supports the compensation judge’s finding, and that finding is affirmed.

This does not end our inquiry, however.  An employee must give notice of a work injury to the employer within 180 days of the injury or the claim will be denied.  Minn. Stat. § 176.141.  The time period for notice begins to run when the employee, as a reasonable person, should have recognized the nature and seriousness of the injury and its probable compensability.  Anderson v. Frontier Commc’ns, 819 N.W.2d 143, 146 (Minn. 2012).  The event that triggers the commencement of the notice period for a Gillette injury does not necessarily coincide with the culmination date of the injury.  The date the employee had sufficient knowledge to trigger the time period for notice is another question of fact that must be affirmed if supported by substantial evidence.  Id. at 147.

For Gillette injuries, knowledge of probable compensability is not often clear.  It is hardly common knowledge that the concept of Gillette injuries exists, let alone that they are compensable in Minnesota.  In this case, however, the employee was the first person to raise the issue of a Gillette injury when he spoke with Dr. Diekmann on September 6, 2018.  While the employee argues that simply saying the phrase “Gillette injury” is not significant, in this situation we cannot agree.  The word “Gillette” is a term of art that goes to the very nature of compensability of repetitive trauma injuries in Minnesota.  The word has no other meaning in the context of injuries suffered from employment.  It was reasonable for the compensation judge to find that the employee’s knowledge, that he gained from his spouse and shared with his doctor, was sufficient to trigger his obligation to report the injury to his employer.

The employee also argues that no doctor expressed an opinion regarding causation until June 2019.  A definitive medical causation opinion is not necessary before notice must be given.  Anderson, 819 N.W.2d at 148-49.  Rather, the evidence as a whole is considered to determine when the employee, as a reasonable person, had enough information to conclude that work activities could be causing an injury, and more so, that under the law such an injury was compensable.  Id.

Because substantial evidence supports the compensation judge’s finding of the date the employee was aware of a compensable Gillette injury, and because he did not give notice of his injury to his employer within 180 days of that date, we also affirm the compensation judge on this point.

As to the employee's argument that the employer and insurer had waived their notice defense, we are not persuaded.  The employee filed a claim petition alleging a Gillette injury occurring in June 2019 or August 2019.  The employer and insurer admitted that the employee provided proper notice of those two alleged dates of injury.  This admission, however, did not waive their right to raise a notice defense for another date of injury.  Likewise, although the employer and insurer did not raise a notice defense in their answer, initial pre-trial statement, or even second pre-trial statement, they did so in an amended second pre-trial statement, and again at the time of the hearing.  There was no waiver of the notice defense to the September 2018 injury date.

Lastly, the employee argues that under the doctrine of laches, the employer and insurer cannot rely upon a notice defense.  Again, we are not persuaded.  The employee argues he was not prepared to address the notice defense until it was truly raised for the first time at the hearing.  He argues that if he had known this was a serious defense, he could have asked Dr. Diekmann more detailed questions about the notice issue at his deposition.  The employee, however, did not request the record be kept open for additional deposition testimony from Dr. Diekmann.  Moreover, there is no showing by the employee that Dr. Diekmann would have been able to testify in any way about the issues that go to this defense, and the employee was able to testify regarding this issue.  Laches does not apply.

Because substantial evidence in the record as a whole supports the Findings and Order of the compensation judge, we affirm.