BILLIE G. KITTLESON, Employee, v. MIRAMAR and MINN. WORKERS= COMPENSATION ASSIGNED RISK PLAN/BERKLEY RISK ADM=RS, Employer-Insurer/Appellants, and MIRAMAR and FAIRMONT INS. CO., Employer-Insurer, and MEDICA/HRI, Intervenor.
WORKERS= COMPENSATION COURT OF APPEALS
JANUARY 23, 2003
APPORTIONMENT - EQUITABLE. Liability for the employee=s pre-existing condition is not apportioned between insurers but is the responsibility of the first insurer whose injury contributes to the ongoing disability.
Determined by Stofferahn, J., Pederson, J., and Rykken, J.
Compensation Judge: Peggy A. Brenden.
DAVID A. STOFFERAHN, Judge
Minnesota Workers= Compensation Assigned Risk Plan (ARP) appeals the compensation judge=s failure to apportion liability for the employee=s pre-existing condition between ARP and a subsequent insurer. We affirm.
According to her records, Billie Kittleson, the employee, had treated with Dr. Robin Crandall, an orthopedist, for low back pain since 1984. The onset of low back pain was attributed to an auto accident in 1981. In 1987, Ms. Kittleson was hospitalized for a myelogram to evaluate severe low back
pain, right leg pain, and some left leg pain. The nature and extent of her treatment is not in evidence. In 1994, Ms. Kittleson complained of severe pain in both legs and, on examination, straight leg raising was positive at a very low angle. On August 23, 1994, Dr. Crandall performed a bilateral L5-S1 laminectomy with bilateral foraminotomies and facet joint debridement with hemifacetectomies.
The employee saw Dr. Crandall again on August 16, 1995 and reported that she had had no Atroubles@ until two months before when she began developing left leg pain. Dr. Crandall referred her to Dr. Garry Banks, who saw her on September 5, 1995. Dr. Banks diagnosed a probable recurrent L4-5 disc protrusion with foraminal stenosis. He placed the employee on restrictions of lifting no more than ten pounds. After a review of records, Dr. Banks recommended surgery which was done on September 21, 1995. Dr. Banks did a bilateral posterior fusion at the L4-5 level with instrumentation. In a recheck examination on October 6, 1995, the employee reported substantial improvement.
At the time of her 1994 surgery, Ms. Kittleson was an independent contractor for Miramar. In the latter part of 1994 she became an employee of Miramar. Both as an independent contractor and as an employee, she performed cleaning for Miramar at an apartment complex with 313 units. She cleaned hallways and other common areas, a task which primarily required vacuuming the hallways. The apartment buildings were three stories high and Ms. Kittleson testified that she needed to carry the vacuum cleaner, a commercial model which was heavier than a household vacuum, up the stairs to do the work. When an apartment became vacant, Ms. Kittleson would clean it for the next tenant. She vacuumed the floors, scrubbed the bathroom, and cleaned the kitchen. Cleaning the kitchen required her to pull the refrigerator and stove away from the wall for cleaning the space behind them. Ms. Kittleson did these duties until March 28, 1998 when she stopped working for Miramar. She has not worked since that time.
On June 7, 1996, the employee returned to see Dr. Banks with a complaint that she was worsening. Her history to Dr. Banks was that her work involved considerable bending, lifting, and twisting. After a recheck on July 5, 1996, Dr. Banks placed work restrictions on the employee and recommended discograms for possible surgery.
The employee filed a claim petition, alleging that she had sustained Gillette injuries in September 1995 and June 1996 and requesting payment by Miramar=s insurer, Minnesota Workers= Compensation Assigned Risk Plan (ARP), for the surgery performed in 1995. The employee also filed a medical request seeking approval for the surgery discussed with Dr. Banks in July 1996.
In a Findings and Order which was issued on September 24, 1997, and which was unappealed, the compensation judge concluded that the employee had sustained a Gillette injury to her low back on September 21, 1995, but because the employee did not provide notice of her injury as required by Minn. Stat. ' 176.141, her claim for payment of medical expense relating to her 1995 surgery was denied. The compensation judge also found a Gillette injury of June 7, 1996, but denied the employee=s request for surgery approval, concluding that the employee had not established that surgery was reasonable or necessary.
Subsequent to the 1997 hearing, the employee continued to treat with Dr. Banks. At a recheck examination on December 9, 1997, the employee noted increased pain and stated she was working with difficulty. A discogram showed a new annular tear at L3-4 and Dr. Banks recommended surgical intervention. Due in large part to the necessity of obtaining insurance approval, the surgery did not take place until March 30, 1998 and the employee continued to work as a cleaner for Miramar until March 28, 1998. Dr. Banks did extensive surgery in 1998 consisting of hardware removal and anterior/posterior fusion L3 to L5 with posterior instrumentation. The employee=s condition required additional surgery in May 1999 involving an exploration of the previous fusion and extension of the fusion to the L2-3 level with instrumentation. In May 2000, the posterior fusion at L2-3 was revised and an anterior fusion at that level was done.
In 2001, the employee filed a claim petition, alleging permanent total disability and permanent partial disability. ARP filed a petition for contribution in February 2002. Both petitions claimed that the employee sustained a Gillette injury at Miramar on March 30, 1998, when its insurer was Fairmont Insurance Company (Fairmont). The claims of the employee and ARP were heard by Compensation Judge Peggy Brenden on May 14, 2002.
The employee was seen a number of times for independent medical examinations by Dr. Paul Wickland on behalf of ARP. Dr. Wickland=s final conclusion was that the employee=s June 7, 1996 Gillette injury was not a substantial contributing factor in the employee=s ongoing disability and that she had sustained a March 1998 Gillette injury. His apportionment of liability was 40 percent to the 1995 injury and 60 percent to the 1998 injury. His opinion was based in large part on the lack of objective changes in 1996, the new annular tear at the L3-4 level, and the extensive surgery required in 1998.
Dr. Mark Friedland evaluated the employee for Fairmont. His opinion was that there was no Gillette injury in March 1998 because the objective findings which led to surgery at that time were in existence some months before. He apportioned responsibility 40 percent to the 1995 injury and 60 percent to the 1996 injury.
In her Findings and Order issued June 21, 2002, the compensation judge found that the June 1996 injury was permanent and that the employee had sustained a Gillette injury to the low back in March 1998. She further concluded that the employee was permanently and totally disabled and held that both of the 1996 and 1998 injuries were substantial contributing factors in the employee=s disability. The compensation judge apportioned 50 percent of the employee=s total disability to her condition before June 1996, 25 percent to the June 7, 1996 injury and 25 percent to the March 1998 injury. The compensation judge determined that the insurer for the 1996 injury was responsible for any disability attributed to the employee=s pre-existing condition and ARP was ordered to pay 75 percent of the benefits and to act as the paying agent. ARP appeals the judge=s determination that it is responsible for 75 percent of the benefits paid to the employee.
ARP does not dispute the compensation judge=s allocation of responsibility but argues that the compensation judge erred as a matter of law in failing to apportion the employee=s pre-existing disability equally between the two insurers.
As support for its position, ARP cites Groth v. Dotson Co., 61 W.C.D. 52 (W.C.C.A. 2000). In Groth the compensation judge found the employee had sustained three work injuries, each with a different insurer, which contributed to the employee=s disability. The insurer for the first injury was insolvent and its claims were handled by the Minnesota Insurance Guaranty Association (MIGA). Because MIGA was not subject to a contribution claim, the compensation judge allocated the liability of the first insurer against the next insurer in line by date of injury. This court reversed and allocated the first insurer=s apportioned liability equally between the other two insurers, finding that there was no good reason to simply transfer all liability of the insolvent insurer to another insurer.
We do not find the Groth decision to be controlling in the present case. Groth arose in a unique context in which MIGA, although otherwise covering obligations of the insolvent insurer, was excused from contribution claims. Further, all of the injuries were work related and the question was not whether apportionment was appropriate but how this apportioned liability would be allocated between solvent insurers. We conclude it would be an unwarranted extension of Groth to apply its holding to the more common question of apportionment for a pre-existing, nonwork-related condition.
This court has dealt with the present issue in Swenson v. Cal-Mech., 50 W.C.D. 1 (W.C.C.A. 1993), in which the employee sustained a number of Gillette injuries to both knees. There was medical evidence that the employee had pre-existing chondromalacia which was aggravated by his work activities and the compensation judge assessed 50 percent responsibility for the ongoing disability against the pre-existing condition. The insurer for the first injury was held responsible for the pre-existing condition. The insurer appealed and argued that the pre-existing condition should be apportioned against all insurers. This court affirmed the compensation judge. It noted that the employee=s injuries were all Gillette injuries and that inherent in the definition of a Gillette injury is the existence of a pre-existing condition which has been aggravated by work activities and which leads to an ultimate breakdown.
We see no reason not to apply the holding in Swenson to the present case. As in Swenson, the injury for which ARP bears responsibility is a Gillette injury. In a Gillette injury, the insurer becomes completely responsible for any pre-existing condition. There are no reasons to change this rule of law simply because there has been a subsequent work injury. ARP might respond that it does not seek to reduce the employee=s right to benefits but only to apply Groth in contribution cases. However, parties in the workers= compensation system have operated under Gillette for more than 40 years and all parties are well aware, that for all practical purposes in such a situation, the existence of a pre-existing medical condition is irrelevant. We decline to adopt the approach argued by ARP and instead affirm the compensation judge.
 Gillette v. Harold Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960).
 See Anderson Trucking Serv. v. Minn. Ins. Guaranty Ass=n, 492 N.W.2d 28 (Minn. Ct. App. 1993), in which it was held that MIGA was not subject to contribution claims by reason of language in Minn. Stat. chapter 60.
 There are two other decisions in which this court addressed the issue of apportionment between insurers for a pre-existing condition. Because the decisions are in conflict and have little discussion of the issue, they will not be considered here. Mauk v. City of Crystal, 35 W.C.D. 391 (W.C.C.A. 1982); Heselton v. Maher Well Drilling, 33 W.C.D. 304 (W.C.C.A. 1980).
 The exception to this is pre-existing permanent partial disability which may be apportioned out in which may reduce an employer=s obligation under Minn. Stat. ' 176.101, subd. 4a. We note that the legislature, in enacting this change to the statute in 1983, did not see fit to otherwise change apportionment for pre-existing conditions.