Bonilla v. Dakota Premium Foods and ACE USA/ESIS, Inc., Case No. WC14-5728 (January 6, 2015)
This is a case in which the compensation judge denied the employee’s claims upon determining that she did not provide statutory notice to her employer of her claimed Gillette injury.
While working for the employer, the employee reported two injuries prior to the injury at issue in this case. On March 1, 2000, the employee reported a cumulative left knee injury to her employer. On August 24, 2011, the employee reported a second cumulative work injury to her employer involving her left arm and the left side of her neck.
In November 2012, the employer installed a new piece of machinery that the employee became responsible for using as part of her normal job duties. In January 2013, employer’s plant manager discovered that the employee was not performing her new job duties and confronted the employee about the situation. The employee testified that she told her employer at that time that she had trouble performing the work because of left upper extremity symptoms and that she needed a different job. The employer testified that the employee did not report any inability to perform her job due to an injury but that she did complain it was too much work. The employee continued to refuse to perform her new job duties and was suspended on January 22, 2013 and ultimately terminated on January 25, 2013.
On June 27, 2013 the employee filed a claim petition alleging a Gillette injury culminating on February 6, 2013, later amended to be January 20, 2013, the employee’s last full day of employment with the employer.
Compensation Judge Johnson indicated that the employee was familiar with the process for reporting a work injury since she had reported 2 prior injuries. Judge Johnson found that the employee “failed to communicate to the employer in January 2013 that she was claiming a work injury” and found the testimony of the employer more persuasive on the issue of lack of notice.
Judge Johnson concluded that notice five months after a claimed injury is insufficient and notice more than 30 days after the injury was not shown to be due to ignorance, inadvertence, or inability of the employee, or to fraud, misrepresentation, or deceit of the employer. Judge Johnson did however find that a Gillette injury occurred, but the claim was ultimately denied for lack of notice.
The WCCA found that there was substantial evidence to support the compensation judge’s conclusion that there was not sufficient notice of injury. As it is not the role of the court of appeals to re-evaluate the credibility and probative value of witnesses’ testimony, the WCCA affirmed the compensation judge’s finding that notice was insufficient.
The WCCA denied the employer and insurer’s argument that the employee did not properly raise the issue of statutory notice regarding the injury in her notice of appeal because the notice of appeal cited Finding 2 when it should have cited Finding 26 (the relevant finding). The WCCA concluded that this was not sufficient to remove the WCCA’s jurisdiction to review Finding 26.
This case has been appealed to the Minnesota Supreme Court by the Employee. The parties are briefing the matter for the court.