Neomi Schmidt, Respondent, vs. Wal-Mart Stores, Inc., and Wal-Mart Claims Services, Inc., Relators
Jerome D. Feriancek, Robb E. Enslin, Trial Group North, Duluth, Minnesota, for relators.
S Y L L A B U S
- The compensation judge‘s finding that the employee‘s Gillette injury culminated in October 2015 is not manifestly contrary to the evidence.
- Under
Minn. Stat. § 176.141 (2022) and this court‘s precedent, the compensation judge‘s finding that the employee‘s statutory notice period for her injury began in March 2019 is not manifestly contrary to the evidence. The compensation judge‘s finding that the employee‘s bus-aide job was representative of her post-injury earning capacity was not manifestly contrary to the evidence.
Affirmed.
O P I N I O N
MCKEIG, Justice.
Respondent-employee Neomi Schmidt was injured during her employment with relator-employer Wal-Mart Stores, Inc. (collectively “Wal-Mart” with relator Wal-Mart Claims Services, Inc.) and sought benefits for a Gillette injury. A compensation judge determined Schmidt was entitled to workers’ compensation benefits because of her Gillette injury. Wal-Mart appealed. The Workers’ Compensation Court of Appeals (WCCA) affirmed the compensation judge‘s findings and conclusions. Wal-Mart petitioned for a writ of certiorari. We affirm.
FACTS
In December 1993, Schmidt had left-knee surgery.1 Wal-Mart hired Schmidt full-time in 2005. Schmidt worked in many roles, including “cashier, department manager, and customer service counter assistant.” Schmidt‘s job was very physical, requiring her to stand, walk, repetitively kneel, repetitively squat, lift up to 50 pounds, and climb ladders.2
On October 27, 2015, Schmidt underwent a left total-knee replacement. Schmidt returned to Wal-Mart as a cashier post-surgery, using a stool as an accommodation, but she found it difficult to perform her job while seated and still had physical job duties like walking and stocking shelves. After the left-knee replacement, Schmidt‘s physician periodically evaluated her left knee and administered conservative care.
In July 2018, Schmidt saw a new physician, Dr. Heller, for left-knee pain, but her x-rays and bone scans were unremarkable. Schmidt continued to have left-knee pain. Dr. Heller recommended left-knee revision surgery and suggested that Schmidt get a second opinion. The second-opinion physician agreed that a revision surgery would be appropriate if physical therapy failed. On January 16, 2019, Schmidt underwent a left-knee revision surgery. Schmidt returned to cashiering at Wal-Mart post-surgery.
On March 1, 2019, Schmidt retained an attorney who sent Wal-Mart written notice of a Gillette injury that same day.3 Schmidt continued to report knee pain. In August 2019,
In July 2020, Schmidt filed a claim petition alleging she sustained a Gillette injury on October 27, 2015, or January 16, 2019—the dates of her left-knee surgeries—and sought workers’ compensation benefits. Wal-Mart requested that Dr. Wicklund perform an independent medical examination of Schmidt, which he conducted in December 2020. Dr. Wicklund opined that Schmidt‘s employment at Wal-Mart “was not a substantial contributing, aggravating, causal, or accelerating factor” to her osteoarthritis, Schmidt‘s condition necessitated restrictions, and Schmidt qualified for permanent partial-disability benefits. In March 2021, Dr. Heller issued an expert report opining that Schmidt‘s work accelerated her preexisting condition, Schmidt‘s left-knee condition necessitated restrictions, and Schmidt qualified for permanent partial-disability benefits.
In September 2021, a compensation judge heard argument and testimony from Schmidt and a Wal-Mart representative. The compensation judge issued an order in October 2021. The compensation judge made three findings relevant to this appeal. First, Schmidt sustained a Gillette injury culminating on October 27, 2015.4 Second, Schmidt gave Wal-Mart proper notice of her injury under
Wal-Mart appealed and the WCCA affirmed. The WCCA explained that when a Gillette injury culminates and when the injury notice period commences are findings of fact. The WCCA affirmed the compensation judge‘s findings on those issues because they were supported by substantial evidence. The WCCA also determined that substantial evidence supported the compensation judge‘s conclusion that Schmidt is entitled to temporary partial-disability benefits based on a loss in earning capacity. Wal-Mart petitioned this court for writ of certiorari.
ANALYSIS
Wal-Mart disputes three of the WCCA‘s findings: (1) the date Schmidt‘s injury occurred, (2) when Schmidt was required to notify Wal-Mart of her injury, and (3) the calculation of Schmidt‘s post-injury earning capacity. Because all three issues involve disputes over factual findings, each issue requires the same standard of review. The WCCA “must affirm the compensation judge‘s findings of fact unless they are clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.” Anderson v. Frontier Commc‘ns, 819 N.W.2d 143, 147 (Minn. 2012) (citation omitted) (internal quotation marks omitted); see also
I.
Wal-Mart‘s first argument challenges the WCCA‘s finding of when Schmidt‘s Gillette injury occurred. Wal-Mart emphasizes that it does not challenge the factual findings underlying the injury-date determination. Instead, Wal-Mart argues that the facts found by the compensation judge require an injury date in 2011 rather than 2015 given the statutory definition of personal injury. See
The date an injury occurs—including a Gillette injury—is a question of fact. See Balow v. Kellogg Coop. Creamery Ass‘n, 78 N.W.2d 430, 434 (Minn. 1956) (“Whether an injury is of such a nature as to indicate to an employee that it will result in disability or the date when it first becomes apparent to him that an injury believed to be nondisabling would actually result in disability are ordinarily questions of fact.“).5 As such, we will uphold the
The compensation judge determined Schmidt‘s Gillette injury culminated on October 27, 2015, the date of her left total-knee replacement.6 The WCCA determined this finding was supported by the record because on October 27, 2015, Schmidt could no longer walk, perform her job duties, and needed surgery. The WCCA also pointed out that before the surgery, Schmidt worked without restrictions and did not miss work because of her knee pain. Wal-Mart argues that the WCCA‘s holding creates the standard “that repetitive trauma injuries are not injuries at all until an employee is totally disabled by them,” so even if an employee knows she has an injury aggravated by her work, “she does not have an injury until she undergoes surgery,” which means the “employer has no chance to prevent a more serious injury.”
We have held that “[a] Gillette injury occurs when the cumulative effects of minute, repetitive trauma are serious enough to disable an employee.” Ryan v. Potlatch Corp., 882 N.W.2d 220, 222 n.1 (Minn. 2016). A Gillette injury can arise if an employee‘s “work aggravated or accelerated an underlying condition or was a proximate contributing cause
Schmidt testified that she did not have problems with her left knee after the 1993 surgery until years after she started working at Wal-Mart. Schmidt‘s job required repetitive walking, crouching, and kneeling, moving 50-pound pallets and other heavy items, and climbing up and down ladders. In 2011, Schmidt was first diagnosed with “[l]eft prepatellar bursitis” and advised to stay off her knee when possible and to use knee pads. In September 2011, Schmidt was diagnosed with “[c]hronic patellar bursitis” and advised to take Aleve, ice her knee daily, use knee pads, and go to physical therapy. Schmidt did not have formal work restrictions.
In May 2015, an x-ray showed a “moderately advanced degenerative change” in Schmidt‘s left knee and she was advised to ice her knee daily, take anti-inflammatories, rest her knee as much as practical, and consult with an orthopedist. Schmidt explained to the orthopedist that her left-knee pain worsened when she bent, flexed, turned, and rotated
The evidence shows that while Schmidt started seeking treatment for her knee pain in 2011, she did not suffer a loss to her earning capacity until she underwent the total-knee replacement in October 2015, after which she returned to work with restrictions. Thus, the WCCA‘s finding that substantial evidence supported the compensation judge‘s finding that Schmidt‘s Gillette injury culminated on October 27, 2015, is not manifestly contrary to the evidence.
II.
Wal-Mart‘s second argument disputes the WCCA‘s affirmance of the compensation judge‘s finding of when the statutory notice period for Schmidt‘s injury commenced under the Workers’ Compensation Act. Wal-Mart contends the notice period for Schmidt‘s injury should have commenced in 2011, when Schmidt knew her work activities contributed to her knee pain. The WCCA affirmed that Schmidt gave Wal-Mart proper notice of her injury on March 1, 2019, when her attorney explained to Schmidt that her injury may be a compensable work injury. Schmidt argues that the WCCA correctly affirmed the compensation judge‘s finding.
We will uphold the WCCA‘s finding unless it is manifestly contrary to the evidence. Lagasse, 982 N.W.2d at 202; see also Anderson, 819 N.W.2d at 147 (“The date on which
In Anderson, we discussed the notice requirement in the context of a Gillette injury and stated that “an employee must give notice of injury no more than 180 days after ‘it becomes reasonably apparent to the employee that the injury has resulted in, or is likely to cause, a compensable disability.’ ” 819 N.W.2d at 147 (quoting Issacson v. Minnetonka, Inc., 411 N.W.2d 865, 867 (Minn. 1987)). We observed that the standard contemplates the “information available to” the employee at any given time, even if there is no medical record explicitly connecting an injury to an employee‘s job. Id. at 148 (determining the appellant had sufficient information “[u]nder our standard from Issacson,” to know his injury was work-related, regardless of whether or not it was documented in his medical records, because the appellant testified that his doctors explained to him bending over pinched his spinal cord, and the appellant testified that he realized before surgery that all
Here, Schmidt‘s injury culminated on October 27, 2015, but she did not give notice until March 1, 2019. However, the WCCA affirmed the compensation judge‘s finding that Schmidt‘s 2019 notice was timely given the information available to her. Most compellingly, the record shows that after her 2015 knee replacement, Schmidt‘s surgeon
Thus, the record demonstrates that the finding that Schmidt‘s notice period commenced on March 1, 2019, is not manifestly contrary to the evidence because the
Wal-Mart also argues that the WCCA erred by holding that knowledge of a compensable injury is a subjective, state-of-mind test that requires an employee to know what a Gillette injury is before the statutory notice period can begin. Wal-Mart seems to misconstrue the WCCA‘s analysis. The WCCA explained that when the notice period for a particular injury commences is a factual finding for the compensation judge and laid out the same standard under Anderson and Issacson that we describe above. Thus, rather than applying a new, subjective state-of-mind test that relies on an employee‘s ignorance of the law, the WCCA conducted the traditional fact-based assessment under Anderson and Issacson and determined it was not reasonably apparent to Schmidt that her injury was work related until her March 1, 2019, meeting with her attorney.10 The WCCA concluded that the medical opinion finding no work-related injury understandably may have influenced Schmidt‘s understanding of her injury and, given all the facts, it was reasonable to conclude Schmidt did not understand she suffered a compensable injury until March 2019. This finding, as explained above, was not manifestly contrary to the evidence.
Finally, Wal-Mart disputes the WCCA‘s finding that Schmidt was eligible for temporary partial-disability benefits based on her loss in earning capacity because of the pay cut Schmidt took when she began the bus-aide job. Because Schmidt returned to Wal-Mart for several months post-surgery before she quit, Wal-Mart argues that her wage at Wal-Mart should be used to determine her post-injury earning capacity. Wal-Mart also claims there is no evidence in the record to support the finding that Schmidt‘s earning capacity diminished.11 Schmidt argues she left Wal-Mart because “[s]he was unable to perform her work at the level required,” and Wal-Mart could not “fully accommodate her limitations.”
Under the Workers’ Compensation Act, temporary partial-disability benefits “may be paid only while the employee is employed, earning less than [their] wage at the time of the injury, and the reduced wage . . . is due to the injury.
“What an employee is able to earn in [their] partially disabled condition is a question of fact.” Mathison v. Thermal Co., Inc., 243 N.W.2d 110, 111 (Minn. 1976) (citation omitted) (internal quotation marks omitted). As previously stated, when reviewing findings of fact, we apply a deferential standard of review—we uphold the WCCA‘s factual finding unless it is manifestly contrary to the evidence. See Lagasse, 982 N.W.2d at 202.
The compensation judge determined Schmidt was eligible for temporary partial-disability benefits because “she had restrictions attributable to her work injur[y] and worked at a wage loss” after she quit her job at Wal-Mart because her ongoing knee pain caused her to obtain a less physically demanding, lower-paying job. The WCCA determined substantial evidence supported this finding because (1) Schmidt‘s Gillette injury led to work restrictions; (2) Schmidt‘s earnings diminished because she could no longer do the physical work at Wal-Mart, causing her to take the lesser-paid, more-sedentary bus-aide job; and (3) Schmidt did not withdraw from the labor market. The WCCA noted that Schmidt‘s bus-aide wage was appropriate to calculate her earning
Schmidt‘s knee never got better, even after the left total-knee replacement in 2015. After surgery, Schmidt continued to see physicians for the pain and was prescribed conservative treatment and work-hour restrictions. After Schmidt‘s 2019 revision surgery, Schmidt continued to have left-knee pain and returned to work with limits on how often she could work. Schmidt quit her job at Wal-Mart because she could not perform the physically laborious job duties. Instead, Schmidt took the bus-aide job because she presumed it would be more sedentary.
Thus, the record reflects that Schmidt‘s condition steadily decreased after her total-knee replacement in 2015, culminating in her leaving Wal-Mart to seek a sedentary job because she was not physically capable of Wal-Mart‘s required job duties. As such, the WCCA‘s affirmance of the compensation judge‘s finding that Schmidt‘s bus-aide wage represented her actual post-injury earning capacity is not manifestly contrary to the evidence.
CONCLUSION
For the foregoing reasons, we affirm the decision of the Workers’ Compensation Court of Appeals.
Affirmed.
Anderson, J., took no part in the consideration or decision of this case.
GILDEA, Chief Justice (dissenting).
I respectfully dissent. The relevant statute provides that “no compensation [is] due until the notice is given.”
The compensation judge‘s finding is supported in the record. The record shows that Schmidt saw a doctor twice in 2011 for pain in her left knee. Schmidt described the pain as “sharp” and “excruciating” and attributed the knee pain to her work. Schmidt‘s doctor diagnosed her with “left prepatellar bursitis.” Schmidt‘s medical records document the work-related pain, noting that while at work, Schmidt is “constantly on her knees” and “[a]s a result, she is constantly aggravating the area.” Finally, Schmidt‘s testimony at the hearing before the compensation judge was clear that she understood that work was causing her left knee pain. Even though Schmidt had “excruciating” knee pain in 2011 that was caused by her work, Schmidt did not give notice to her employer in 2011.
We have recognized that when “it becomes reasonably apparent to the employee that the injury has resulted in, or is likely to cause, a compensable disability,” the employee must give the notice required in
Because Schmidt did not give the statutorily-required notice within the time period set in the statute, I would hold that the statute bars her claim and reverse.