Senftner v. Bimbo Bakeries USA, Inc., and Ace USA

James Senftner v. Bimbo Bakeries USA, Inc., and Ace USA, No. WC20-6385, (W.C.C.A, MAY 4, 2021). 

The employee, James Senftner, started working as a route sales professional for the employer in March 1990 when he was 31 years old 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. His duties involved 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.   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 continued to follow-up with Dr. Diekmann from 2016 – 2019.  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 a variety of injections over this timeframe which were not beneficial either.

The employee returned to Dr. Diekmann on September 6, 2018.   Dr. Diekmann wrote that the employee “is going to explore the possibility of his knee arthritis being at Gillette type injury related to his years of truck driving activity.”  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.

The employee next saw Dr. Diekmann on June 5, 2019, reporting that his pain was even worse than the previous September.  Dr. Diekmann noted that all non-operative care had been exhausted and that the only remaining treatment was total knee replacement.Dr. Diekmann also recorded his opinion that the employee’s work was a substantial factor in causing the bilateral knee 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 on August 19, 2019.  This was the first time the employee lost any time from work due to his knee symptoms.

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.

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.

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. 

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 our role is not to pick a “better” date, but to determine whether substantial evidence supports the fact finding of the compensation judge.  Substantial evidence supported the compensation judge’s finding, and that finding is affirmed.

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.

Substantial evidence supported the compensation judge’s finding of the date the employee was aware of a compensable Gillette injury, and this was also affirmed because he did not give notice of his injury to his employer within 180 days of that date.

Holding: The record of the employee’s medical treatment together with his knowledge of the compensability of his work injury constitutes substantial evidence supporting the compensation judge’s findings regarding the culmination date of the employee’s Gillette-type knee injury and the beginning of the notice period for that injury.