Schmidt v. Wal-Mart Stores, Inc., No. WC21-6439 (Minn. April 5, 2023).
Wal-Mart hired the employee in 2005. She worked in various roles thereafter, but generally her job duties required standing, walking, repetitive kneeling, repetitive squatting and lifting up to fifty pounds. In 2011, the employee told her medical provider that her left knee pain worsened due to her repetitive kneeling at work. In May 2015, her orthopedist recommended a left total knee replacement, which took place in October 2015. Shortly thereafter, the employee returned to an accommodated, cashier role.
Fast-forward to July 2018, the Employee was recommended a left-knee revision surgery, which took place in January 2019. Post-surgery, the employee again returned to her cashier role. She retained counsel on March 1, 2019 who sent notice to the employer of a Gillette injury that same day. The employee voluntarily resigned from Wal-Mart and started working part-time as a bus aide. She then quit that position in March 2020 due to knee condition.
The Employee then filed a Claim Petition alleging Gillette injuries on her dates of surgery. Both parties obtained narrative reports. Dr. Wicklund’s IME report on behalf of Wal-Mart opined that the Employee’s work with Wal‑Mart “was not a substantial contributing, aggravating, causal, or accelerating factor” to her osteoarthritis. Dr. Heller, the employee’s treating provider opined that the employee’s work accelerated her preexisting condition.
A compensation judge found the following: (1) the employee sustained a Gillette injury culminating on October 27, 2015; (2) the employee provided proper notice; and (3) the employee did not fail to prove a loss in earning capacity causally related to her Gillette injury. Wal‑Mart appealed and the WCCA affirmed. Wal-Mart then petitioned for writ of certiorari.
On appeal, Wal-Mart first argued that the WCCA’s factual determination supported a 2011 date of injury rather than a 2015 date of injury. Wal-Mart emphasized that by 2015 the employee could no longer walk or perform her job duties. The Minnesota Supreme Court reiterated that the Employee did not have formal work restrictions in 2011 and was only advised to ice, take Aleve and use knee pads. By 2015, the employee started to miss work and/or had work restrictions because of her left knee symptoms. Therefore, the evidence supported an October 2015 culmination date.
Next, Wal-Mart argued that the statutory notice period for the Gillette claim commenced in 2011 when the employee knew her work activities contributed to her knee pain. The WCCA found that the employee gave Wal-Mart proper notice of her injury on March 1, 2019 when her attorney explained that her injury may be a compensable work injury. The Court was most compelled by a 2015 medical record where the employee’s surgeon explicitly stated that her injury was not work‑related. The employee also testified that she did not realize that she could report her knee pain. Therefore, the Court again found that the record demonstrated that the employee’s notice period did not commence until her attorney indicated her claim could be compensable.
Lastly, the court also found that the employee was entitled to temporary partial disability benefits even though she took a pay cut when she began her position as a bus-aide.
Lastly, the court also found that the employee was entitled to temporary partial disability benefits even though she took a pay cut when she began her position as a bus-aide.
Holding: Gillette culmination dates are factual determinations dependent on the circumstances including but not limited to medical treatment, work restrictions and time loss. Further, the statutory notice period did not commence until the employee’s attorney informed her about the compensability of Gillette injuries.