JACQUELINE S. BUSCH, Employee, v. ADVANCED MAINTENANCE and STATE FARM GROUP, Employer-Insurer/Cross-Appellants, and VIKING FOODS and STATE FUND MUT. INS. CO., Employer-Insurer, and CENTER FOR DIAGNOSTIC IMAGING, INSTITUTE FOR LOW BACK & NECK CARE, and CORESTAR HEALTH PLAN, Intervenor, and SPECIAL COMPENSATION FUND, Appellant.
WORKERS= COMPENSATION COURT OF APPEALS
JULY 30, 2002
APPLICABLE LAW - CONTROLLING EVENT; CALCULATION OF BENEFITS - SUPPLEMENTARY BENEFITS; SPECIAL COMPENSATION FUND - APPLICABLE LAW. The issue of which injury is Acontrolling@ for purposes of workers= compensation law is a legal one, not a factual one. Where the compensation judge found the 1999 injury to be a substantial contributing factor in the employee=s permanent total disability and apportioned 25% of that disability to that injury, the amount and period of compensation resulting from the combined effects of that 1999 injury and a 1990 injury were fixed by the law in effect in 1999, pursuant to Joyce v. Lewis Bolt & Nut Co., 412 N.W.2d 304, 40 W.C.D. 209 (Minn. 1987), and the judge=s finding that the 1990 injury was the controlling event was therefore reversed, as was the judge=s award of supplementary benefits, in that the supplementary benefits statute had been repealed prior to the 1999 injury.
Determined by Pederson, J., Rykken, J., and Wilson, J.
Compensation Judge: Carol A. Eckersen.
WILLIAM R. PEDERSON, Judge
The Special Compensation Fund and employer Advanced Maintenance and its insurer appeal both from the compensation judge=s determination of the Acontrolling event@ for determining the employee=s entitlement to benefits and from the judge=s award of supplementary benefits pursuant to Minn. Stat. ' 176.132. We reverse.
On June 19, 1990, Jacqueline Busch sustained injuries to her low back and coccyx while employed by Advanced Maintenance. Advanced Maintenance and its insurer admitted liability for the injuries and paid medical and wage loss benefits. Ms. Busch [the employee] was forty-four years old on the date of this injury and was earning a weekly wage of $150.00. On July 2, 1999, and September 13, 1999, the employee sustained further injuries to her back, these while employed by Viking Foods. On these injury dates, the employee was earning a weekly wage of $148.03. The employee continued working after these injuries, but she eventually underwent a right L5-S1 microdiscectomy on March 10, 2000, and she has not returned to work since that surgery.
Following her 1999 injuries, the employee filed a series of claim petitions. In an amended petition filed February 12, 2001, the employee named the Special Compensation Fund as an additional party and claimed entitlement to temporary partial disability benefits from September 13, 1999, through March 9, 1999, and to permanent total disability benefits continuing from March 10, 2000. The employee asserted that her permanent total disability status was due solely to her injury of June 19, 1990.
The employee=s claims came on for hearing before a compensation judge on November 20, 2001. Prior to trial, the parties stipulated that the employee had been permanently totally disabled since her surgery on March 10, 2000. Neither employer and insurer would accept any liability, however, each contending that the other was 100% responsible for the employee=s disability. Following the hearing and the submission of post-trial written arguments, on February 4, 2002, the compensation judge issued her Findings of Fact, Conclusions of Law, and Order. In that decision, the judge determined in part that the employee=s injuries of June 19, 1990, and September 13, 1999, were both substantial contributing causes of the employee=s permanent total disability, and she apportioned 75% of that disability to the 1990 injury and 25% to the 1999 injury. The judge also concluded that the 1990 injury was the controlling event for purposes of determining the law governing the employee=s rights. On those conclusions, the judge ordered Advanced Maintenance and Viking Foods to pay permanent total disability and medical benefits according to their apportioned share of liability, and she ordered the Special Compensation Fund to pay supplementary benefits on the 75% apportioned to the 1990 injury, supplementary benefits being no longer authorized by statute as of the date of the 1999 injury. The Special Compensation Fund appeals and Advanced Maintenance cross appeals.
STANDARD OF REVIEW
A[A] decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which [the Workers= Compensation Court of Appeals] may consider de novo.@ Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993).
Both appellants contend that the compensation judge erred as a matter of law in her determination that the controlling event in this case was an injury that predated the employee=s last compensable injury. The employee argues that the judge found that the employee=s injuries in 1999 were merely a continuance of her 1990 injury and that, despite the judge=s apportionment, the judge=s determination that the 1990 injury is the controlling event is factually supported by substantial evidence. We agree with the appellants that the issue of which injury is Acontrolling@ for purposes of workers= compensation law is a legal one, not a factual one. See Joyce v. Lewis Bolt & Nut Co., 412 N.W.2d 304, 40 W.C.D. 209 (Minn. 1987).
In Joyce v. Lewis Bolt & Nut Co., 412 N.W.2d 304, 40 W.C.D. 209 (Minn. 1987), the employee sustained six separate work-related injuries, the last of which occurred after significant statutory changes became effective January 1, 1984. The compensation judge awarded various benefits, including temporary total disability benefits through 90 days post maximum medical improvement [MMI]. At issue was whether the Anew law@ concept of MMI could be invoked to destroy rights vested under statutes applicable to the employee=s prior injuries. The supreme court held as follows:
[I]t is the most recent occurrence of a compensable personal injury which is the controlling event, and the law then in effect governs the employee=s rights with respect to the claim arising out of that injury. If a period of disability is precipitated by a Aconsequential@ injury, a recurrence, or a mere temporary aggravation, which is simply a continuance of an earlier injury, as opposed to a new, separate injury, the original injury continues to be the controlling event, and the employee=s rights are governed by the Workers= Compensation Act in effect on the date of the original injury. If, on the other hand, the employee suffers a new, separate injury, that new injury supersedes the earlier injury as the controlling event, and the law in effect on the date of the new injury supersedes the law in effect at the time of the earlier injury.
Id. at 307-08, 40 W.C.D. at 213-14 (citations omitted).
In another case, Judd v. Doege Precision Machining, Inc., slip op. (W.C.C.A. Jan. 4, 2002), summarily aff=d (Minn. Apr. 24, 2002), this court reviewed the issue of which law applies under circumstances where the employee sustained bilateral hand and wrist injuries in both 1995 and 1998. In an unappealed decision issued in December 1999, a compensation judge had apportioned liability for benefits equally between the two employers and insurers. In October 2000, the insurer on the risk for the 1998 injury had filed a Notice of Intention to Discontinue Benefits, contending that the employee was limited to 104 weeks of temporary total disability benefits under Minn. Stat. ' 176.101, subd. 1(k) (1995). In reliance on Joyce, a compensation judge had concluded that neither employer and insurer had any further liability for temporary total disability benefits. On appeal, the employee had agreed that the insurer on the risk for the 1998 injury did not have any further liability, but she had asserted that the Joyce case was not controlling, in that she remained eligible for temporary total disability benefits based on the earlier injury. In support of her argument, the employee had cited Johnson v. Tech Group, Inc., 491 N.W.2d 287, 47 W.C.D. 367 (Minn. 1992), and Webeck v. Mochinski General Contractor, 41 W.C.D. 1063 (W.C.C.A. 1989). The Judd court found that the Johnson and Webeck cases were inapplicable, in that, in both of those cases, the employees had already reached full, final, and complete settlement of all claims based on their first injuries. The only issue presented in those cases had been whether the second employer and insurer were entitled to some apportionment or offset against their liability by reason of the first injury. The issue had not been, as it had been in Joyce, a question of conflicting laws under the workers= compensation act. The court in Judd concluded that, under the Joyce case, the 1998 personal injury was the controlling event and the law then in effect governed the employee=s rights to benefits.
In the present case, the compensation judge cited in her memorandum the case of Gabrielson v. Teri Constr. Co., 57 W.C.D. 311 (W.C.C.A. 1997), presumably in support of her apportionment of supplementary benefits. In Gabrielson, the employee had sustained two injuries, the first while employed by Teri Construction Company and the second while uninsured in a self-employment capacity. Both of the employee=s injuries had occurred at a time when he would have been entitled to supplementary benefits had he been covered by workers= compensation insurance. The compensation judge had apportioned liability and awarded the employee supplementary benefits on the percentage of liability that was attributable to the injury covered by workers= compensation insurance. On appeal, the Gabrielson court concluded that the Joyce case was not applicable, in that the issue was not which of two conflicting laws should apply but whether the employee was entitled to certain benefits when he was not covered by the workers= compensation act on the second date of injury. We conclude that Gabrielson is inapplicable in the present case.
The employee contends that the compensation judge was entitled to determine as a factual matter the date of the controlling event, asserting that the 1999 injury was merely a continuance of the 1990 injury and that substantial evidence in the record supports the judge=s factual determination in this regard. We do not agree that the compensation judge found the 1999 injury to be a continuance of the 1990 injury. To the contrary, the judge determined the 1999 injury to be a substantial contributing factor in the employee=s permanent total disability, and she apportioned 25% of that disability to that injury. Because the judge found the 1999 injury to be a Anew, separate injury@ and not a consequential injury or simple continuance of an earlier injury, the amount and period of compensation resulting from the combined effects of the employee=s injuries is fixed by the law in effect in 1999. As the supreme court indicated in Marose v. Maislin Transp., 413 N.W.2d 507, 40 W.C.D. 175 (Minn. 1987), under facts such as these, computing the amount and period of compensation payable to the employee in this case Ahas nothing to do with equitable apportionment.@ Marose, 413 N.W.2d at 513, 40 W.C.D. at 183. Pursuant to Joyce, the law in effect at the time of the 1999 injury must be applied in determining the employee=s entitlement to benefits. Accordingly, we reverse the judge=s determination as to the date of the controlling event, and, because the supplementary benefits statute had been repealed before the date of the second injury, we also reverse the award of supplementary benefits.