The employer and insurer appealed the workers’ compensation decision that the Employee suffered a Gillette injury on October 27, 2015, that she provided proper notice, and that she did not withdraw from the labor market. The employee suffered from chronic left knee pain that required surgical intervention twelve years before her employment began with employer. She maintained that she was symptom-free and working without restrictions.
In 2005, she began a full-time job with the employer in which she worked a variety of roles. One year later, she sought medical care for her left knee pain. She did not claim a specific work injury, but was provided restrictions. Then in 2011, she reported that she was constantly aggravating her knee at work. Her healthcare provider diagnosed pre-patellar bursitis. From September 2011 and May 2015, the employee did not seek medical treatment for her left knee condition.
However, in May 2015, she began experiencing constant left knee pain. The employee was referred to Dr. Ghose who diagnosed her with left knee arthritis and recommended a total knee arthroplasty. Dr. Ghose stated that the employee’s condition was not due to an injury. The total knee arthroplasty took place on October 27, 2015. Dr. Ghose reiterated that the employee’s left knee condition was not the result of an injury and was not work-related in November 2015.
The employee returned to her cashier position, but the conservative treatment had failed. A revision surgery was performed on January 16, 2019, but the employee found it difficult to work when she resumed her duties with the employer. She sought legal counsel in March 2019 who sent the employer notice of the employee’s work-related Gillette-type injury. She resigned her position in August 2019 and began working part-time as a school bus driver in September 2019. Then in January 2020, the Social Security Administration awarded her disability benefits retroactively beginning June 2018. In March 2020, the employee resigned from the bus company because of COVID-19.
After filing a claim petition alleging entitlement to various benefits, the employee was examined by Dr. Wicklund who opined her condition was not work related, but due to preexisting osteoarthritis. The employee’s medical provider, Dr. Heller, opined that the employee had preexisting osteoarthritis, which had been accelerated by her work for the employer. A QRC from the Vocational Rehabilitation Unit 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.
At hearing, the workers’ compensation judge found that the employee suffered a Gillette injury on October 27, 2015, that she provided proper notice, and that she did not withdraw from the labor market. The employer and insurer appealed.
On appeal, the employer and insurer first argued that the employee knew her work activities were causing left knee symptoms in September 2011, which is the date that triggered the statutory obligation to give notice. They also argued that by giving notice to the employer around March 2019, the claim was barred. The court disagreed and noted it was reasonable to conclude that the Gillette injury culminated around the time her work activities caused her to be disabled from work during surgery and recovery. Moreover, the court reasoned that notice was properly given in March 2019 because the employee continued to be unaware that repetitive minute trauma culminating in an injury could be a compensable work-related injury until she sought legal counsel. To further this stance, the court pointed to Dr. Ghose’s medical note, which specifically noted the left knee condition was not a work injury. Lastly, the court found 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.
Takeaway: That even though an employee seeks medical care for symptoms he/she relates to work, he/she may not have sufficient knowledge to understand the compensability of a claim, which triggers the statutory notice obligation, when her medical providers do not find a causal connection between work and the injury.