NEOMI SCHMIDT, Employee/Respondent, v. WALMART and WALMART CLAIMS SERVS., INC., Employer-Insurer/Appellants, and REGIONS HOSP., ABBOTT NW. HOSP., and MINN. DEP’T OF LABOR & INDUS., VRU, Intervenors.

The employer and insurer appeal the compensation judge’s award of benefits and the findings that the employee sustained a Gillette-type injury, gave proper notice, and did not withdraw from the labor market or voluntarily refuse a suitable job offer.  We affirm.

The employee, Neomi Schmidt, suffered from chronic left knee pain for twelve years before she started working for the employer, Walmart Store, Inc.  She underwent surgery for her chronic knee pain on December 27, 1993.  She maintained that she was symptom-free following the surgery and could work without restrictions.

In 2005, she began a full-time job with the employer in which she worked a variety of roles, all of which required her to engage in standing, walking, lifting to 50 pounds, carrying, bending, climbing ladders while carrying products, kneeling, and squatting on a repetitive basis.  Beginning in 2006, the employee sought medical care for left knee pain.  She did not claim a specific work injury but noted that she had been climbing ladders carrying products weighing 50 pounds.

In April 2011, the employee sought medical care for ongoing left knee pain.  She reported that she was constantly aggravating her knee at work.  Her healthcare provider diagnosed pre-patellar bursitis.  In September 2011, the employee complained of pain in her left knee after kneeling at work.  She was advised to take Aleve and ice her knee.  Between September 2011 and May 2015, the employee did not seek medical treatment for her left knee condition.

In May 2015, the employee began experiencing constant left knee pain, which had increased to the point that walking was difficult.  She sought further care and was referred to Tilok Ghose, M.D., for an orthopedic evaluation.  During this evaluation, the employee reported no history of a knee injury, but described her knee pain as recurring and chronic and worse with walking and standing.  Dr. Ghose diagnosed left knee arthritis and recommended a total knee arthroplasty.  Dr. Ghose stated that the employee’s condition was not due to an injury.

In October 2015, after completing her shift at work, the employee experienced significant left knee pain.  She told her manager that the left knee condition prevented her from working on ladders.  The manager suggested that she move into a less strenuous job as a cashier which allowed her to use a stool to take weight off her left knee.  No first report of injury was filed.

The employee underwent a total left knee replacement on October 27, 2015, performed by Dr. Ghose.  Prior to the surgery, the employee was given no formal medical restrictions and lost no time from work due to her left knee pain.  On November 2, 2015, Dr. Ghose indicated the employee’s left knee condition was not the result of an injury and was not work-related.^[1]

After recovering from surgery, the employee resumed her cashier position with the employer under restrictions that she be able to sit as needed.  However, the employee found that using a stool while working as a cashier did not relieve her continuing left knee pain.  She sought care with Mark Heller, M.D. for ongoing knee pain and stiffness.^[2]  Treatment included aspirating fluid from the knee joint.  In October 2018, when conservative treatment had not relieved the employee’s left knee pain, Dr. Heller recommended revision surgery, which was performed on January 16, 2019.  After recovering from surgery, the employee resumed work with the employer, but found it physically difficult to continue working as a cashier.

 On March 1, 2019, the employee sought legal counsel regarding her left knee condition.  She met with an attorney, who assessed the employee’s condition and sent notice to the employer that the employee had suffered a work-related Gillette-type injury.

The employee resigned her position with the employer in August 2019 and began working part-time as a school bus driver in September 2019.  In January 2020, the Social Security Administration awarded the employee disability benefits retroactively beginning June 1, 2018.  In March 2020, the employee resigned from the bus company because of the COVID-19 shutdown and because she could not physically tolerate her work duties due to continuing left knee pain.  The employee earned less as a bus driver than she did as a cashier for the employer.

On July 23, 2020, the employee filed a claim petition alleging a Gillette-type injury to her left knee culminating on October 15, 2015, and/or January 16, 2019, and entitlement to workers’ compensation benefits.  The employer and insurer denied that the employee suffered a work injury, denied that she had given proper notice of the injury under Minn. Stat. § 176.141, claimed that she had voluntarily withdrawn from the labor market, and argued that the employee did not suffer a loss of earning capacity because she left a job offered by the employer that was within her restrictions.

Paul T. Wicklund, M.D., saw the employee at the employer and insurer’s request.  He examined the employee, took a history of the injury, reviewed multiple medical records, and drafted a narrative report on December 16, 2020.  Dr. Wicklund opined that the employee’s left knee condition was not due to her work activities, but to preexisting osteoarthritis.  He concluded that the employee’s bilateral knee problems were age-related and unrelated to walking, kneeling, or climbing ladders.  He permanently restricted the employee from deep squatting, kneeling, and climbing ladders, opined that she had reached maximum medical improvement on January 16, 2020, and assigned a permanent partial disability (PPD) rating.

Dr. Heller also provided a medical opinion on the employee’s condition.  In his narrative report of March 29, 2021, he diagnosed the employee with preexisting osteoarthritis which had been accelerated by her work for the employer.  He concluded that the left knee treatment was secondary to the employee’s repetitive injury at work, the employee required restrictions, and she qualified for PPD.

On July 9, 2021, the employee met with a qualified rehabilitation consultant (QRC) from the Department of Labor and Industry/Vocational Rehabilitation Unit (DLI/VRU).  The QRC concluded that the employee could not return to work with the employer and was permanently precluded from engaging in the employee’s usual and customary occupation.  The QRC contacted the employer and was told that the employer did not anticipate light or modified duty positions to become available.  The rehabilitation plan, agreed to by the employee and employer and insurer, set the employee’s vocational goal as a return to work with a different employer.

The employee’s claims were heard on September 13, 2021.  In the Findings and Order, issued on October 20, 2021, the compensation judge awarded temporary total disability benefits (TTD), temporary partial disability benefits (TPD), PPD, and medical benefits.  She found that in 2011, the employee knew her work activities were causing her left knee pain.  She found that the employee had sustained a Gillette-type injury to her left knee culminating on October 27, 2015, and that the employee gave due and proper notice pursuant to Minn. Stat. § 176.141, when she became aware of the compensability of her claim after meeting with her attorney.  The judge further found that the employer and insurer failed to prove that the employee had voluntarily withdrawn from the labor market, that the employee’s job search was unreasonable, or that she suffered no loss of earning capacity.  The employer and insurer appeal.

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).

On appeal, the employer and insurer argue that the compensation judge erred in finding that the employee suffered a Gillette-type injury on October 27, 2015.  Because the judge found that the employee knew her work activities were causing left knee symptoms on September 22, 2011, they argue that September 22, 2011, is the date that triggered the employee’s statutory obligation to give notice to the employer and is also the date that the employee sustained a Gillette-type injury.  They also argue that by giving notice to the employer around March 1, 2019, the employee failed to give timely notice and is therefore barred from workers’ compensation benefits.  We are not convinced.

The compensation judge found that the employee’s Gillette-type injury culminated on October 27, 2015, when the employee’s work activities with the employer aggravated her left knee condition to the point that she was unable to walk, perform her job duties, and needed surgery.  Before that date, the employee had worked for the employer without restrictions or lost time.  The judge rejected the employee’s claim that she suffered a Gillette-type injury culminating on January 16, 2019, when the employee underwent the second left knee surgery.  The date when a Gillette-type injury culminates is a finding of fact for the compensation judge.  Gunderson v. McNeilus Cos., 73 W.C.D. 401, 409 (W.C.C.A. 2013).  Here, it was reasonable for the judge to conclude that the Gillette injury culminated around the time her work activities caused her to be disabled from work during surgery and recovery.

It was also reasonable for the judge to conclude that the employee gave timely notice of the occurrence of her injury.   The Workers’ Compensation Act provides that unless knowledge is obtained or written notice given to the employer within 180 days after the occurrence of the injury, no compensation shall be allowed.  Minn. Stat. § 176.141.  For a Gillette-type injury, the time to give notice to the employer begins to run when “it becomes reasonably apparent to the employee that the injury has resulted in, or is likely to cause, a compensable disability.”  Isaacson v. Minnetonka, Inc., 411 N.W.2d 865, 867, 40 W.C.D. 270, 274 (Minn. 1987).  Actual knowledge of the occurrence of an injury is “knowledge of such information as would put a reasonable person on inquiry.”  Anderson v. Frontier Commc’ns, 819 N.W.2d 143, 147 n.2, 72 W.C.D. 417, 422 (Minn. 2012).  The date on which an employee has sufficient knowledge to trigger the duty to give notice of an injury is a question of fact for the compensation judge.  Id., 819 N.W.2d at 147-148, 72 W.C.D. at 423.  That date of notice must be affirmed if it is supported by substantial evidence.  Id.

Here, the record reflects that by 2011, the employee knew that work activities were causing her left knee pain, but she was not aware of the compensability of her injury until she had met with her attorney on March 1, 2019.  The attorney sent a letter dated March 1, 2019, to the employer notifying them of the employee's Gillette-type knee injury.  Before the left knee surgery in 2015, the employee and the employer's manager confirmed that they talked about the left knee pain and how work was aggravating it, yet no first report of injury was filed.  The employee continued to be unaware that repetitive minute trauma culminating in an injury could be a compensable work-related injury.

Moreover, the medical record did not indicate that a Gillette-type injury or aggravating injury had occurred.   Dr. Ghose, who had performed surgery in October 2015, specifically recorded that the left knee condition was not a work injury.  Seven years later, in 2021, Dr. Heller was the first medical provider to report a causal connection between the employee’s work and her left knee surgery and disability.  Although a medical causation opinion is not necessary to commence the notice period,^[3] a medical opinion finding no work-related cause as Dr. Ghose had opined in 2015 may influence the employee's understanding of her left knee complaints.  Under these facts, the judge could reasonably conclude that while the employee knew her work activities were causing her left knee pain, she did not understand that she had suffered a compensable injury until she met with her attorney on March 1, 2019.

We affirm the findings of a Gillette-type injury culminating on October 27, 2015, and that proper notice was given when the employee became aware of the compensability of her claim on March 1, 2019.

On appeal, the employer and insurer also argue that the judge erred in finding that the employee is entitled to wage loss benefits.  They argue that the employee voluntarily left her position with the employer in August 2019, that she failed to prove she was unable to physically perform her job with the employer, and she offered no evidence to establish a diminution in her earning capacity to justify the award of TPD benefits.  We are not persuaded.

Entitlement to TPD benefits depends on four factors.  Dorn v. A.J. Chromy Constr. Co., 310 Minn. 42, 245 N.W.2d 451, 29 W.C.D. 86 (1976).  The employee must have: (1) a work-related injury resulting in disability, (2) a loss of earning capacity causally related to that disability, (3) the ability to work subject to the disability, and (4) an actual loss of earning capacity.  Id.  Here, it was reasonable for the judge to conclude that the employee was entitled to TPD during the time she worked for the bus company.

Following revision surgery in January 2019, the employee was off work through May 13, 2019, and then released to work four-hour days for no more than two consecutive days, with a stool available as needed and no busy cash registers.  In August 2019, the employee resigned from her cashier position with the employer because she could not physically continue working as a cashier.  In September 2019, she began working for a new employer as a bus driver under the assumption that she would be performing a more sedentary job.  On January 29, 2020, the Social Security Administration determined that she was disabled from work beginning on June 1, 2018.  The employee resigned her position with the bus company in March 2020, due in part to her inability to continue working and in part to the COVID-19 pandemic and an associated school shutdown.  The employee has not worked since.

Both Dr. Heller and Dr. Wicklund restricted the employee’s work activities due to her left knee condition.  Dr. Heller, whose opinion was adopted by the judge, determined that the employee’s work duties as a cashier accelerated her preexisting left knee condition.  Dr. Heller restricted the employee’s lifting to no more than 30 pounds, standing to no more than one hour with a 10-minute break, and no crawling, kneeling, or squatting.

In July 2021, the QRC reported that the employee was permanently precluded from returning to work with the employer, could not engage in her usual and customary occupation, and was not expected to return to work with the employer.  The employer objected, noting that the employee did not seek another less physically strenuous position with the employer which could have accommodated her, but the employer offered no other position.

In awarding temporary partial disability benefits, the compensation judge found that the employee suffered a Gillette-type injury on October 27, 2015, resulting in the need for restrictions.  The compensation judge determined that the employee had a diminished earning capacity due to a physical inability to continue the job with the employer and the reduced earnings in her job as a bus driver which she believed would be mostly sedentary.  The judge determined that the employee did not withdraw from the labor market by leaving her job with the employer because she immediately began working at the bus company.   The bus driver job was appropriately presumed to be representative of her earning capacity.^[4]  Substantial evidence supports the award of TPD benefits, and we affirm.