NEWS / Legal News - April 2023

Gillette Injury - Schmidt v. Wal-Mart

An employee had left knee surgery in 1993 and then began working at a Wal-Mart store in 2005. In 2011 the employee went to a doctor and said her work activities were increasing her knee pain. Eventually, the employee had knee replacement surgery in 2015. Unfortunately, the employee’s knee pain did not improve, and she then had revision surgery on January 16, 2019.

The employee then went to see a workers’ compensation attorney on March 1, 2019, who sent notice to Wal-Mart of a claimed Gillette injury that day. This is the first notice of an injury Wal-Mart had received.

The employee ended up quitting her job at Wal-Mart because she claimed it aggravated her knee condition and went to work as a bus aide making significantly less money.

Wal-Mart denied the claim based on lack of notice and also claimed that temporary partial disability wage loss benefits were not due because the bus aide position was not representative of her earning capacity.

The case went to trial and a Compensation Judge found that the employee had a Gillette injury culminating in 2015, that she gave proper notice of the injury, and that she proved a loss in earning capacity. Wal-Mart appealed and the Minnesota Workers’ Compensation Court of Appeals affirmed.

The Minnesota Supreme Court affirmed.

The Court said the date of injury was 2015, not 2011 because a work injury does not occur until there is a loss in earning capacity which did not happen until she was off work for her surgery.

Secondly, the Court said that proper notice was given because the employee did not understand that she had a compensable work injury until her attorney told her.

Finally, the bus aide job did represent the employee’s earning capacity because she was not physically able to go on working at Wal-Mart.

There is a dissent from the Chief Judge pointing out that the employee knew she had a work injury in 2011 and that is when she should have given notice of her injury.


It seems that any notice defense will be rather limited in cases with Gillette injuries. Unless there is strong evidence that an employee knows that they have a compensable work injury and did not report it, most late notices will likely be excused.